Opinion
KNLCV156024222S
08-23-2016
Brandon Molnar v. Yvonne Adams et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE RULING ON OBJECTIONS TO DEFENDANT JENNIE GIORINAZZO'S APPORTIONMENT COMPLAINT AND TO PLAINTIFF BRANDON MOLNAR'S AMENDED COMPLAINT
Timothy D. Bates, J.
On June 9, 2015, the Plaintiff Brandon Molnar brought a suit against Defendants Yvonne Adams and Jennie Giorinazzo claiming damages arising out of an automobile accident which occurred on Route 32 in the Town of Waterford on June 5, 2013. On February 16, 2016, the defendant Giorinazzo filed an apportionment complaint against apportionment defendants Denyce R. Thomson, Daniel Robert Lee Thompson and Lauren Kersey, claiming that they were responsible for the accident. On March 11, 2016, Plaintiff Molnar requested leave to file an amended complaint, including the apportionment defendants as defendants in the original suit. (Pleading #118.)
However, on March 15, 2016, apportionment Defendant Thompson moved to dismiss the apportionment complaint brought by Giorinazzo on the grounds that the apportionment complaint was not filed within 120 days after the return date of the original complaint as required by C.G.S. Sec. 52-102b. (Pleading #121.) On March 17, 2016, apportionment Defendant Thomson filed a motion to dismiss the original apportionment complaint on the same grounds, and also objected to the proposed amended complaint submitted by Molnar on the basis that if the original apportionment complaint were dismissed, then the leave to file the amended complaint should be denied. (Pleading #122.) Defendant Thompson thereupon filed his own objection to Molnar's request to amend. (Pleading #123.)
In response to these motions, the apportionment plaintiff, Ms. Giornazzo, has submitted an affidavit stating that the apportionment complaint was sent to a marshal for service within 120 days after she was served with the underlying complaint, but for unknown reasons, the complaint was not received by the marshal. According to the affidavit, a second apportionment complaint was sent to the marshal for service over a month later, but it was not served by the marshal. Ultimately, according to the affidavit, a complaint was then sent to a new marshal and was served on February 2, 2016, well beyond the 120-day period.
The apportionment plaintiff argues that the 120-day limitation is not absolute and may be extended for compelling reasons. However, both cases cited by the apportionment plaintiff involved circumstances establishing compelling equitable reasons for extending the time limit. In Pedro v. Miller, 281 Conn. 112, 914 A.2d 524 (2007), the legal basis for apportionment did not arise until after the 120-day limit had passed. In that case, a treating doctor allegedly committed malpractice in tending to the original plaintiff, and the original defendant then sought to bring the doctor in as an apportionment defendant to share in the liability. The court determined that under these circumstances, it was appropriate to bring the doctor into the case, even though the 120-day period had passed. In a similar case, Peterson v. Griff, an act of malpractice which occurred after the original injury was deemed an equitable reason to bring the treating physician in as an apportionment defendant, even though the 120-day period had passed.
The apportionment plaintiff does not argue that jurisdiction can be achieved in this case under the accidental failure of suit statute. C.G.S. 52-592. That statute allows the reinstatement of a civil suit if late service occurs through no fault of the plaintiff. However, Superior Court opinions have consistently ruled that the accidental failure of suit statute does not apply to apportionment actions. See Aponte v. McMahon, Superior Court, judicial district of Fairfield, Dkt. # CV-05-4006022-S (May 16, 2006, Radcliffe, J.) 41 Conn.L.Rptr. 360, finding C.G.S. 52-592 does not apply to apportionment complaints; Wheaton v. Boothroyd, Superior Court, judicial district of Tolland, Dkt. # CV-99-70976, (October 3, 2000, Sferrrazza, J.) holding C.G.S. 52-592 does not revive apportionment complaints because, by its terms, it only applies to plaintiffs; and Ortiz v. Bridgeport Hospital, Superior Court, judicial district of New London, Dkt. # 547104 (February 24, 2000, Corradino, J.) (26 Conn.L.Rptr. 419, ) opining that Sec. 52-592 defeats the legislative intent of Section 52-102b.
The apportionment plaintiff is thus left with arguing that the apportionment complaint should be allowed to stand based on general equitable tolling principals. However, in one case with similar procedural circumstances as this one, tolling was not granted. See Perez v. Louis, Superior Court, judicial district of New Haven, Dkt. # CV-07-05009185-S (March 19, 2008, Holden, J.) (41 Conn.L.Rptr. 360, ) finding no equitable reason to toll Sec. 52-102b when an apportionment complaint was not served because it was misplaced and not sent to the marshal.
In the case of apportionment, " Mandatory time limits . . . must be complied with absent an equitable reason for excusing compliance . . ." Lostritto v. Cmty. Action Agency of New Haven, Inc., 269 Conn. 10, 35-36, 848 A.2d 418 (2004). In this case, the apportionment plaintiff has not identified a compelling, equitable reason to disregard the statutory time line. Accordingly, the motions to dismiss the apportionment complaint of defendant Givornazzo against apportionment defendants Thomson and Thompson are granted, and, pursuant to C.G.S. Sec. 52-102b(c), the request by Plaintiff Molnar to amend his complaint and include Thomson and Thompson as defendants is denied.