Opinion
No. X10 UWY CV054010156S CLD
February 27, 2007
Torts — Damages — Contribution and Apportionment — Provision of the Apportionment Impleader Statute Barring Apportionment Complaints Against Persons Immune from Liability to the Plaintiff Does Not Authorize Impleader of Persons Who, Although Immune for Claims for Negligence, May Be Liable to the Plaintiff on Other Theories of Recovery. The provision of the Apportionment Impleader Statute that bars an apportionment complaint against any person who is immune from liability to the plaintiff, CGS § 52-102b(c), bars such complaints against any person immune on grounds of negligence even if the person might be liable on another theory of recovery. This opinion holds that in an action for personal injuries by a firefighter against a third party whose negligence allegedly caused the fire at which the firefighter was injured, the defendant may not bring an apportionment complaint against the fire chief for negligently contributing to the plaintiffs injuries because, pursuant to CGS § 7-308, all firefighters are immune from claims by co-firefighters, even though that statute excludes from its grant of immunity claims for "wilful and malicious" conduct by co-firefighters.
Before the court are motions to dismiss filed by the apportionment defendant, Daniel Warzoha ("Warzoha") in both of the above-captioned proceedings, seeking the dismissal of apportionment complaints filed against him by the defendants/apportionment plaintiffs Connecticut Natural Gas ("CNG") and Plant Integration (collectively the "apportionment plaintiffs"). For the reasons set forth herein, Warzoha's motions to dismiss are granted.
The following facts, which the court accepts as true for the purposes of this motion to dismiss, can be gleaned from the complaints and apportionment complaints in these matters. On or about December 5, 2003 an explosion and resulting fire occurred at the premises commonly known as 312 Davis Street, Greenwich, Connecticut (the "premises"). The explosion was the result of the collision of a snowplow truck, owned by Plant Integration and operated by an employee of Plant Integration, with a pipe that supplied natural gas to the premises. The pipe was owned and/or installed by CNG, which provided natural gas to the premises. Kennard Little ("Little"), a firefighter for the Town of Greenwich, was injured in the course of performing his duties with respect to the fire.
The foregoing nucleus of facts has given rise to several interrelated civil actions, two of which are implicated by the motions presently before the court. In Kennard Little v. Plant Integration et al., Little has alleged, among other things, that he was injured as a result of the negligence of Plant Integration, through its employee, in operating the snowplow. Little also claims that CNG negligently failed to inspect and maintain the natural gas pipe and regulator, and installed them at the premises in a manner that left them exposed to dangerous contact. In Town of Greenwich v. Plant Integration et al., the Town of Greenwich seeks reimbursement of workers' compensation paid to certain firefighters, including Little, as a result of injuries sustained by them in responding to the fire at the premises. The Town's allegations against Plant Integration and CNG are similar to those made by Little, as discussed above.
In both actions, CNG have served apportionment complaints upon Warzoha, among others. Only in Kennard Little v. Plant Integration et al. has Plant Integration served an apportionment complaint upon Warzoha. These complaints allege that Warzoha, who is the Fire Chief for the Town of Greenwich, was negligent in his management of the fire scene at the premises and in his direction and instruction of firefighters, including Little. Warzoha has moved to dismiss the apportionment complaints in both cases, arguing that liability cannot be apportioned to him because he is immune from liability to the plaintiffs in both cases pursuant to General Statutes § 7-308. The court agrees with Warzoha.
"[I]n ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Lawrence Brunoli, Inc. v. Branford, 247 Conn. 407, 410-11, 722 A.2d 271 (1999). "The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone . . . Where, however. . . the motion is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue and need not conclusively presume the validity of the allegations of the complaint." (Citation omitted; internal quotation marks omitted.) Barde v. Board of Trustees, 207 Conn. 59, 62, 539 A.2d 1000 (1988); Shay v. Rossi, 253 Conn. 134, 140, 749 A.2d 1147 (2000). "Where a decision as to whether a court has subject matter jurisdiction is required, every presumption favoring jurisdiction should be indulged (internal quotation marks omitted)." Woodward v. Woodward, 44 Conn.App. 99, 102, 683 A.2d 1010 (1997).
Warzoha relies upon General Statutes § 7-308 in support of his motions to dismiss. That statute provides in relevant part:
If a fireman or, in the case of his death, his dependent, has a right to benefits or compensation under chapter 568 by reason of injury or death caused by the negligence or wrong of a fellow employee while both employees are engaged in the scope of their employment for such municipality, such fireman or, in the case of his death, his dependent, shall have no cause of action against such fellow employee to recover damages for such injury or death unless such wrong was wilful and malicious.
According to Warzoha, the first-party plaintiffs in both actions — Little and the Town, respectively — would be barred by that statute from bringing a negligence claim against Warzoha directly. Therefore, apportionment of liability to Warzoha is barred by General Statutes § 52-102b(c), which provides that "[n]o 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."
It is not disputed that the Town's claim for reimbursement of workers' compensation payments pursuant to General Statutes § 31-293 is derivative of its employee's (in this case, Little's) claim. See Doucette v. Pomes, 247 Conn. 442, 724 A.2d 481 (1999). Therefore, because the Town "stands in the shoes" of Little, the respective rights of the Town and Little vis-a-vis Warzoha need not be given separate analysis.
Plant Integration and CNG attempt to avoid this apparently plain result by contending that Warzoha is not wholly immune from liability to Little. Although they concede that Warzoha is immune from any negligence claims by the plaintiffs pursuant to General Statutes § 7-308, they point out that a separate civil action presently is pending wherein Little has made claims against Warzoha arising out of alleged reckless and/or intentional conduct, to which claims the immunity afforded by General Statutes § 7-308(b) is inapplicable. Therefore, they argue that Warzoha is not "immune from liability" within the meaning of General Statutes § 52-102b(c).
This argument cannot stand in light of the statutory apportionment scheme, which on its face is applicable only to claims of negligence and explicitly bars the apportionment of other kinds of liability. General Statutes § 52-102b is the procedural implementation of the substantive apportionment principles codified at General Statutes § 52-572h. In Allard v. Liberty Oil Equipment Co., 253 Conn. 787, 756 A.2d 237 (2000), the Connecticut Supreme Court made it abundantly clear that both of those statutes concern negligence actions only. According to the court, "a civil action to which section 52-572h applies, within the meaning of § 52-102b, means a civil action based on negligence." (Emphasis added; internal quotation marks omitted.) Id. 794-95. The court noted that the legislature, in enacting General Statutes § 52-572h(o), clearly intended to abolish all forms of apportionment except for those permitted by statute. Id., 803-04.
In construing General Statutes § 52-102b, it is appropriate for the court to consider that statute's relationship to the statutory apportionment scheme as a whole. See General Statutes § 1-2z.
With limited exceptions not applicable here, the legislature has limited apportionment to negligence claims. See General Statutes § 52-572h(o). That statute provides in relevant part that "there shall be no apportionment of liability or damages between parties liable for negligence and parties liable on any basis other than negligence including, but not limited to, intentional, wanton or reckless misconduct. . ." It is plain, therefore, that the term "immune from liability" in General Statutes § 52-102b(c) refers to negligence liability. Any other construction would lead to a patently absurd result because, as discussed above, General Statute § 52-572h(o) specifically bars apportionment based upon reckless or intentional conduct. The court can discern, and the plaintiff has proffered, no basis for construing General Statutes § 52-102b(c) in a manner that is at odds with the substantive apportionment principles that the statute was intended to implement.
The incongruity of the apportionment plaintiffs' argument is amply illustrated by its consequences. If the court were to agree with the apportionment plaintiffs and deny the present motions, Warzoha would remain in these cases as an apportionment defendant. There would, however, be no substantive basis for apportioning liability to him. To reiterate, Warzoha's immunity from negligence claims means that negligence liability cannot be apportioned to him pursuant to General Statutes § 52-102b(c), while any claims against him based upon recklessness and/or intentional conduct are barred from apportionment pursuant to General Statutes § 52-572h(o). It would be absurd to construe General Statutes § 52-102b as permitting Warzoha to remain in these actions as an apportionment defendant notwithstanding he lack of any substantive basis for apportioning liability to him.
The court concludes that the meaning of General Statutes § 52-102b(c), when considered in light of the statutory apportionment scheme, is clear. That statute prevents a person, like Warzoha, from being made an apportionment defendant if that person is immune from negligence liability. That Warzoha may be found liable on the basis of recklessness and/or intentional conduct is of no moment, because such liability may not be apportioned to him.
Warzoha's motions to dismiss the apportionment complaints brought against him by CNG and Plant Integration in the above-captioned actions are granted.