Opinion
No. CV06-5003196S
February 15, 2008
MEMORANDUM OF DECISION RE CH2M HILL'S MOTION TO DISMISS
I
The matter before the court is a Motion to Dismiss the apportionment complaint filed by the third-party defendant/apportionment plaintiff, Gilbane, Inc. The Motion to Dismiss is filed by the apportionment defendant CH2M Hill, Inc. The Motion to Dismiss is based on the straightforward argument that the apportionment complaint was not served on CH2M "within one-hundred twenty days of the return date specified in the plaintiff's original complaint as required under subsection (a) of Connecticut General Statutes § 52-102b. Accordingly the court lacks personal jurisdiction over apportionment defendant, CH2M Hill."
II
A procedural history of the case is necessary before the court addresses the apportionment defendant's motion and Gilbane's responses to the motion.
In March 2006 Lebov Iron Works filed suit against Providence Washington Insurance Co. for property damage claiming Providence did not provide reimbursement under the terms of a policy Lebov had with Washington. The original complaint in this action which had a return date of April 25, 2006 is a three-page document. It alleged Lebov suffered damages in the amount of $300,000 as to certain of its property, it had a commercial lines policy with Providence, the policy was in effect at the time of the loss and Providence failed to pay Lebov for the loss (first count). The second count makes a similar claim as to other property owned by Lebov and insured by Providence. The third count claims Providence unlawfully and wrongfully cancelled the operative policies and Lebov had to secure other insurance all to its financial detriment. The policy is attached to the complaint, and no mention is made as to how the damage was caused or which entity caused it. As is common to these actions, the only assertion is that the policy was to cover certain risks and the damages fell within that risk. This action was assigned the docket number CV06-5003196S. On July 27, 2006 Providence filed a third-party complaint in this matter which refers to the fact that Lebov has sued Providence under the insurance policy claiming Providence breached the insurance contract by not paying Lebov's loss. The third-party complaint then goes on to say in two counts that if damages were caused to Lebov, they resulted from the negligence of Gilbane and the New Haven Regional Water Pollution Control Authority. Gilbane is said to not have removed underground water while excavating land to install a water storage tank and did not properly safeguard the plaintiff's building when the pile driving was done. Paragraph 10 of both counts goes on to say that if Providence becomes obligated to pay Lebov for damages caused to its property then because of the policy provisions and equitable considerations, Providence can recover against Gilbane and the Water Authority.
Now the troubles begin. On December 21, 2006 Gilbane filed an apportionment complaint naming CH2M as an apportionment defendant. Through secretarial error, this apportionment complaint was ascribed the docket number of a companion case, CV06-5004725S and was placed in that file. On January 17, 2007, however, counsel for CH2M entered his appearance in CV06-5003196S for CH2M on a standard appearance form and listed the docket number as that of this case CV06-5003196S. This is not surprising since the December 21, 2006 Gilbane apportionment complaint had attached to it as an exhibit the third-party complaint against Gilbane which bore the correct docket number, CV06-5003196S.
On January 11, 2007, Gilbane's attorney wrote to the clerk's office explaining the error and requesting the December 21st apportionment complaint be filed in the CV06-5003196S file; it had been filed in CV06-5004725S because of the docket number assigned to it in error. The letter said "if necessary" an amended apportionment complaint with the correct docket number would be filed. A copy of this letter was sent to counsel for CH2M. Another such letter was sent on February 13, 2007. On February 15, 2007, Gilbane did file an amended apportionment complaint with the correct docket number, CV06-5003196S.
III
The apportionment plaintiff Gilbane raises two arguments. First it argues that Providence's "third party complaint naming Gilbane as a third party defendant tolls the 120 day limitation of Connecticut General Statutes § 52-102b governing the filing of an apportionment complaint." Secondly, Gilbane contends CH2M "waived its right to challenge the court's jurisdiction over it as its Motion to Dismiss was not timely filed pursuant to Connecticut Practice Book § 10-30."
(a)
Interpreting § 52-102b, the court, in Lostritto v. Community Action Agency, 269 Conn. 10 (2004), made clear that the 120-day time limitation in subsection (a) of the statute was mandatory, not directory; it is a substantive limitation on the right to apportionment and "failure to comply with its requirements prevents a defendant from exercising the right to apportion liability," id., p. 27.
However, the court noted that such "mandatory time limitations must be complied with absent an equitable reason for excusing compliance including waiver or consent by parties," id., page 36 quoting from Williams v. CHRO, 257 Conn. at page 270. This means that we are dealing not with an issue of subject matter jurisdiction but personal jurisdiction.
In any event, Pedro v. Miller, 281 Conn. 112 (2007), further elaborated on the foregoing language just quoted. At 281 Conn., page 118, the court said "mandatory compliance with the 120-day limit, however, is not without exception. Mandatory time limitations, we stated `must be complied with absent an equitable reason for excusing compliance, including waiver or consent by the parties' . . . we did not enumerate in Lostritto other equitable reasons, beyond waiver or consent, that would excuse compliance with the 120-day limit" (emphasis by court).
In Pedro itself, the court said there was a compelling equitable reason to toll the 120-day limitation. It held the trial court improperly dismissed an apportionment complaint against a physician which was brought beyond the 120-day time limitation of § 52-102b(a) from the date of the original complaint.
In Pedro the plaintiff sought recovery for damages she alleged she sustained in a motor vehicle accident. Over a year after the date of the original complaint the plaintiff amended her complaint to allege for the first time that during treatment for back injuries sustained during the accident she suffered additional injuries. The defendants served an apportionment complaint on the physician well beyond 120 days from the original complaint alleging the back injuries were due to the doctor's malpractice and thus a certain share of the liability should be apportioned to the doctor. The Supreme Court held the trial court erred in dismissing the apportionment complaint.
The court noted at page 119 that until the plaintiff made the new allegations that she suffered a cereberospinal injury during her treatment by this doctor "the legal basis for the defendants to seek apportionment from him did not arise until after — indeed long after — the 120 day time limit already had passed. Consequently it was impossible for the defendants to serve the apportionment complaint upon (the doctor) within the 120 day time limit established by § 52-102b(a). Such a circumstance presents a compelling equitable reason for excusing compliance with the limit set forth in that statute," id.
The same is true here. The original complaint sounded in failure to meet contractual obligations by an insurance company after a damage was sustained by Lebov, the insured. Negligence is not alleged. No apportionment theory or action was available until the Third-Party Complaint was filed by Providence alleging negligence by Gilbane and the Water Authority — it was only then that Gilbane could file an apportionment claim against CH2M.
As Justice Borden noted the mandatory 120-day rule was created to accomplish reasonable certainty in apportionment actions; but "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," id., p. 119.
CH2M, in effect, seeks to avoid the reasoning of Pedro by arguing: "Even if the court considers the return date of the Third Party Complaint, which it should not, the Amended Apportionment Complaint was still filed more than 120 days after September 12, 2000, the return date of the Third Party Complaint. Furthermore if the court determines that CH2M Hill was served with the Apportionment Complaint in the above captioned matter in January 2, 2007 which it should not, this date is still more than 120 days after April 25, 2006, the return date of the Original Complaint." But the argument assumes its conclusion by predicating itself on the position that the Amended Complaint in CV06-50030196S and the date of its filing controls the calculation of the 120-day time period from the Third-Party Complaint and that the court in analyzing this problem must refer to the return date of the original complaint.
It is the court opinion that the operative apportionment complaint for determining compliance with the 120-day rule in § 52-102b(a) is that complaint dated December 21, 2006 and filed in court January 5, 2007 despite the fact that it was given an incorrect docket number by attorneys for Gilbane, that is CV06-5004725S and in fact placed in that file. CH2M Hill, Inc. is listed as an additional defendant with its agent for service. The certification represents it was served on all pro se parties in addition to the lawyers of record.
To reach this conclusion the court would note that the suit in docket number CV06-004725S was, as noted, originally brought by Lebov Iron Works against the New Haven Water Pollution Control Authority, Greater New Haven Water Pollution Control Authority and Gilbane, Inc. On October 27, 2006 an apportionment complaint by Gilbane against CH2M was filed with a copy of the original complaint in that case which sounded in negligence. On November 14, 2006 present counsel for CH2M Hill, Inc. entered an appearance in that action, CV06-5004725S. But in that file appearing as #115 the apportionment complaint relevant to CV06-5003196S but with the CV06-5004725S docket number and described in the preceding paragraph was also placed. Attached to it was the third-party complaint in CV06-5003196S with the correct docket number and obviously referencing the original complaint in that action brought against Providence Washington Insurance Company.
What we have here is the wrong docket number on a legal document which, other things being equal, would suffice to bring it within the time limit of § 52-102b(a). It is not necessary to wander through ameliorative statutes like § 52-72 and § 52-123 to permit Gilbane's apportionment claim in CV06-5003196S. Common-law cases are instructive on how to treat an error like this and the consequences thereof.
In Beers v. Westport Bank Trust Corp., 50 Conn.App. 671 (1998) the court reversed the trial court's conclusion that a prejudgment attachment was invalid. The court noted that "the prejudgment remedy order issue from and the process was returnable to the judicial district of Fairfield at Bridgeport. The plaintiff claim(ed) that the error in referring to judicial district of Danbury rendered the attachment invalid because General Statutes § 52-285 must be strictly followed in order to obtain a valid attachment." The court rejected this position and said the following:
In support of its claim that the defect is inconsequential, the defendant relies on the case of Joseph v. Donovan, 114 Conn. 79, 157 A. 638 (1931). In that case, the certificate of attachment was written on a preprinted form that could be used in either the Superior Court or the Court of Common Pleas for New Haven County. The party drafting the certificate failed to strike out the reference to the Court of Common Pleas so that the certificate indicated that it was returnable to the "Superior Court of Common Pleas" for the county of New Haven. Our Supreme Court concluded that the defect was inconsequential, and the certificate, therefore, was valid, because "[a]ny person having occasion to examine the certificate could readily have ascertained in which of the two courts the action was pending, either from the recitals of the certificate itself or by enquiry . . ." Id., 83., id., p. 675.
It cannot be said that the result would have been different in Beers and Joseph if some clerk based on the misinformation, decided, for example, to create two files.
An experienced lawyer like counsel for CH2M upon examining CV06-5004725 would immediately recognize that the second apportionment complaint was not operative in that file and was meant to be filed in CV06-5003196S. Why on earth would a litigant in CV06-5004725 file two apportionment complaints in the same file, attaching to the second one the Third-Party Complaint to the apportionment complaint which is only relevant to such a claim in CV06-5003196S. Counsel for CH2M was certainly not misled, he filed an appearance in CV06-5003196S on January 17, 2007 and was copied two letters to the clerk's office wherein Gilbane's attorney explained the docketing number error.
The court could only find two wrong docket number cases, both criminal and not directly on point, State v. Smith, 99 Conn.App. 116, 134 (2007); State v. Gillespie 92 Conn.App. 143, 148 (2005) (subject matter jurisdiction claim).
In any event the court does not believe Gilbane should be deprived of the opportunity to present an apportionment complaint against CH2M; to do so here would mean form would be exalted over substance. Also it is difficult to see how CH2M would be prejudiced in opposing the merits of that complaint based on what occurred here. The amended Apportionment Complaint filed in February 2007 merely memorialized the correcting of a docket number error which could have misled no one.
In any event the foregoing is sufficient at least for this court to deny the motion to dismiss.
IV
There is another matter raised by Gilbane in opposition to the motion to dismiss filed by Gilbane. It is argued that the motion to dismiss Gilbane's Apportionment Complaint was not timely filed pursuant to P.B. § 10-30 read together with P.B. § 10-31(2). As regards motion to dismiss for lack of personal jurisdiction, § 10-30 of the Practice Book indicates that a motion to dismiss must be filed "within thirty days of the filing of an appearance by the party seeking the dismissal."
In the present file, CV06-5003196, counsel for CH2M filed an appearance on January 17, 2007 but the motion to dismiss for lack of personal jurisdiction was not filed until March 19, 2007 well over the thirty days from the filing of the appearance.
Although the court agreed with Gilbane on the 120-day issue under § 52-102b(a) it cannot agree with the procedural argument under P.B. § 10-30 that CH2M does not have the right to press this motion. On this score the Gilbane brief makes an interesting point in arguing that the 30-day rule in P.B. § 10-30 "is not open to interpretation." It quotes from Grievance Committee v. Trantolo, 192 Conn. 15, 22 (1984), to the effect that "The rules of statutory construction apply with equal force to Practice Book Rules." Exactly. The court has previously noted the construction Lostritto v. Community Action Agency, 269 Conn. 10 (2004), and Pedro v. Miller, 281 Conn. 112 (2007), gave to § 52-102b(a). They both held that the 120-day limit in the statute is mandatory. As previously discussed, however, Pedro v. Miller made clear that mandatory compliance with the limitation "is not without exception." The court then said such mandatory time limits must be complied with absent an equitable reason for excusing compliance, including waiver or consent by the parties quoting from Lostritto at 269 Conn. pp. 35-36. Pedro made clear however, that the "equitable reasons" that would excuse 120-day compliance are not confined to waiver or consent, 281 Conn. at page 118. It seems to the court as with § 52-102b(a) "equitable considerations" can in the proper case excuse mandatory compliance with the 30-day rule under P.B. § 10-30. The court relied on equitable considerations to reject CH2M's § 52-102b(a) argument; it seems only fair that equitable doctrine should apply to the question of whether it has the right to raise its § 52-102b(a) argument.
Here the confusion was caused by Gilbane filing an apportionment complaint with the wrong docket number which quite understandably was filed in the case, CV06-5004725S, with that docket number. This apportionment complaint remained in that file and still remains there, wrong docket number and all. There was nothing in this file CV06-0031965, despite the January 17, 2007 appearance by counsel for CH2M, at which a motion to dismiss could be aimed. Although not exactly on point Batura v. Turk, 35 Conn. L. Rptr. 509 (2003), is of some relevance, as Horton and Knox note in their commentary to P.B. § 10-30. There Judge Rush held "the filing of an appearance before process is returned to the court does not start the 30 day limit."
Given the somewhat unusual circumstances of this case it does not seem equitable to the court to base its denial of the motion to dismiss on a purported violation of the 30-day rule of P.B. § 10-30. The amended apportionment complaint was filed on February 16, 2007 in this file (CV06-5003196) and the motion to dismiss was filed March 19, 2007, within the thirty-day time period under P.B. § 10-30.
But for reasons previously stated the court denies the motion to dismiss.