Opinion
No. CV 01-0807227
September 13, 2004
MEMORANDUM OF DECISION ON REQUEST FOR LEAVE TO AMEND COMPLAINT
The plaintiff has filed, pursuant to Practice Book § 10-60, a request for leave to amend its second amended complaint. The defendant has objected to the amended complaint. The matter is set for jury selection on October 13, 2004. The judicial authority may restrain such amendments so far as may be necessary to compel the parties to join issue in a reasonable time for trial. Practice Book § 10-60(b).
Although the parties touch on the timeliness of the amendment, the real disagreement between them is whether or not the proposed amendment states a cause of action which is barred by the statute of limitations.
Ordinarily the court would examine the request to amend in light of the rules set forth in Section 10-60. The court recognizes that "[A]mendments relate back to the date of the [original] complaint unless they allege a new cause of action." Keenan v. Yale New Haven Hospital, 167 Conn. 284, 285 (1974). If the parties wish to test whether a particular amendment relates back or, in the alternative, states a new cause of action, the court believes the appropriate way to decide this issue is to allow an amendment followed by the defendant's filing of a special defense of statute of limitations. The court and the parties would then be in a position to consider a motion for summary judgment on the validity of the special defense of statute of limitations.
The instant matter was briefed and argued by the parties as if it were an argument for summary judgment concerning the relation back doctrine. In view of the approach taken by the parties in briefs and arguments, and the fact that the trial date is already established for a little over five weeks, the court will assume that the proposed amendment is in compliance with Section 10-60 and will address the question of relation back as if this were a motion for summary judgment on the statute of limitations.
This matter arises from a multi-vehicle chain-reaction pile-up which took place on March 12, 1998 on South End Bridge in Springfield, Massachusetts, The plaintiff was a passenger in one of the vehicles and claimed injuries as a result of the collision. The plaintiff appears to have brought a case against twelve specifically named tortfeasors in the courts of the Commonwealth of Massachusetts. It appeared to be agreed at argument on this matter that the Massachusetts actions were settled for a total payment to the plaintiff of $120,000.00. The present action was brought in Connecticut as an uninsured or underinsured motorist complaint naming the twelve specifically identified alleged Massachusetts tortfeasors. It further appears that in the settlement of the Massachusetts action, each alleged tortfeasor had sufficient insurance.
The plaintiff in this third amendment is now proposing to add two additional defendants to support its uninsured motorist claim. Each of these defendants are what is commonly referred to as a "phantom vehicle." While there had been some discussion of "phantom vehicles" in the Massachusetts case, there had been no pleading naming "phantom vehicles" in either case prior to this proposed amendment in the Connecticut case.
It does not appear to the court that the plaintiff can show the exhaustion or absence of coverage required for uninsured or underinsured benefits unless she is allowed to bring in the "phantom vehicles."
There is no question that the statute of limitations to bring these claims has long expired unless saved by the amendment relating back to the date of the original Connecticut complaint.
Generally, Connecticut courts are liberal when it comes to allowing amendments of pleadings, providing the amendment is seasonally made, the amendment will not result in an injustice to the parties, the amendment will not unduly delay the trial, and the amendment does not set forth a new cause of action.
Because the question of a new cause of action is dispositive of this matter, the court will assume without deciding that this amendment satisfies the other three requirements.
The Supreme Court examined the question of the relation back in amendments in negligence cases in Sharp v. Mitchell, 209 Conn. 59, 71, 72 (1988), with the following language:
A cause of action is that single group of facts which is claimed to have brought about an unlawful injury to the plaintiff and which entitles the plaintiff to relief. Bridgeport Hydraulic Company v. Pearson, 139 Conn. 186, 197, 91 A.2d 778 [1952]; Veits v. Hartford, 134 Conn. 428, 434, 58 A.2d 389 [1948]. "A right of action at law arises from the existence of a primary right in the plaintiff, in an invasion of that right by some delict on the part of the defendant. The facts which establish the existence of that right and that delict constitute the cause of action." Pavelka v. St. Albert Society, 82 Conn. 146, 147, 72A 725 [1909]. A change in, or addition to, a ground of negligence or an act of negligence arising out of the single group of facts which was originally claimed to have brought about the unlawful injury to the plaintiff does not change the cause of action. [Citations omitted.] It is proper to amplify or expand what has already been alleged in support of a cause of action, provided the identity of the cause of action remains substantially the same, but where an entirely new and different factual situation is presented, a new and different cause of action is stated.
In Sharp, the plaintiffs, administrators of the estates of three men who had been asphyxiated in an industrial accident, sued for wrongful death. After the statute of limitations had run the plaintiffs attempted to amend their complaint and alleged for the first time that the defendants were negligent in designing and constructing the underground storage facility in which the death occurred. The court found that this stated a new cause of action which did not relate back so as to be protected from the effect of the statute of limitations. The plaintiff in this case argues that the Connecticut law on relation back has eased since Sharp and that the result in Sharp would not be reached by our appellate courts today. Sharp has not been overruled, but the plaintiff may be right in her claim that courts have become more lenient in allowing amendments.
The parties cite numerous cases, all of which are either negligence cases or occasionally products liability cases, in which there have been arguments about relation back. What the cases share in common is that the proposed amendment is essentially a new specification of negligence. Typical of these cases is Giglio v. Connecticut Light Power Company, 180 Conn. 230 (1980). In Giglio, the plaintiff claimed that the defendant engineering firm had negligently performed percolation tests on the plaintiff's property. The court held that an amendment filed after jury selection alleging a new ground of negligence for violating a state regulation and completing a site plan for faulty design of a septic system related back to the original complaint whose allegations focused solely on the faulty percolation tests.
Although neither plaintiff nor defendant has treated this matter as a case of first impression, the court believes that, in fact, it is such. Both sides have treated the dispute between Ms. Milano and Government Employees Insurance Company (GEICO) as if this were a negligence case. In fact, this dispute is not a negligence case but rather an uninsured motorist case under the policy in question as set forth in Section 38a-336 of the Connecticut Statutes. Essentially the elements of the uninsured motorist claim are that a contract must be in effect, there must be either no insurance or inadequate insurance to respond to damages, and the uninsured or inadequately insured party must be responsible for the accident. It is only with regard to this third element that the case partakes of a negligence analysis. The action itself however, is not one in negligence but one in contract.
The plaintiff here is not trying to add a new specification of negligence. The plaintiff is trying to add new claims in a contract case. The court well recognizes that in each case the defendant is GEICO. However, GEICO is being asked to answer for the actions not of one of the original twelve drivers but for one or both of the unknown drivers of the "phantom vehicles" now being pled for the first time. The court holds that the attempt to add the "phantom vehicles" at this point is not a new allegation of negligence sufficient to relate back to the date of the original complaint. It is the opinion of the court that the introduction of "phantom vehicles" at this point creates a new cause of action and consequently is barred by the statutes of limitations. The request to amend is denied and the objection to the request to amend is sustained.
BY THE COURT
KEVIN E. BOOTH, J.