Opinion
MMXCV116005390.
11-05-2012
Karen PARZYCH v. WOODBURY REALTY COMPANY et al.
UNPUBLISHED OPINION
AURIGEMMA, J.
The apportionment defendant, Saint Francis Hospital and Medical Center (" St.Francis"), has moved to dismiss this action against it for lack of personal jurisdiction.
Factual and Procedural Background
The plaintiff, Karen Parzych, filed a two-count complaint dated May 31, 2011 (the " Complaint"), alleging negligence against the defendants, Woodbury Realty Company and Carabetta Management Company (" Woodbury"). The complaint alleges that on June 9, 2009, the plaintiff slipped and fell, sustaining serious bodily injury, on property owned, possessed and/or controlled by Woodbury. The Complaint also alleges that while receiving medical treatment at St. Francis on the same date, the plaintiff fell in the parking lot and sustained further injuries. The plaintiff did not name St. Francis as a defendant. However, the plaintiff did bring a separate medical malpractice lawsuit against St. Francis in Karen Parzych v. St. Francis Hospital et al., No. MMX-CV11-6005404 (the " St. Francis case"), which was consolidated with this case on January 23, 2012.
On October 17, 2011 Woodbury filed an apportionment complaint against St. Francis. The apportionment complaint alleged that the plaintiff's injuries were caused in whole or in part by the negligence of St. Francis and that St. Francis is, therefore, liable for its proportionate share of the plaintiff's alleged injuries and losses. On November 23, 2011, the plaintiff filed a motion to dismiss the apportionment complaint on the grounds that Woodbury failed to attach a certificate of good faith including the written opinion of a similar health care provider to the apportionment complaint. While seeking the dismissal of the apportionment complaint, the plaintiff also filed a motion for extension of time to serve " an apportionment complaint" on St. Francis in the event the court denied the motion to dismiss. Although St. Francis's counsel had filed an appearance in this action, the plaintiff never sent counsel a copy of the motion for extension of time. St. Francis argues that it was severely prejudiced by this failure. The court denied the motion to dismiss the apportionment complaint on March 21, 2012 [ 53 Conn. L. Rptr. 637] and thereafter on April 8, 2012, the plaintiff filed an amended complaint in which it added a negligence claim against St. Francis. St. Francis has moved to dismiss that complaint.
Discussion of the Law and Ruling
Practice Book § 10-31 provides that a motion to dismiss is to be used to attack the court's personal jurisdiction. " 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." Fillippe v. Sullivan, 273 Conn. 1, 8 (2005).
Connecticut General Statutes § 52-102b provides in pertinent part:
(a) A defendant in any civil action to which section 52-572h applies may serve a writ, summons and complaint upon a person not a party to the action who is or may be liable pursuant to said section for a proportionate share of the plaintiff's damages in which case the demand for relief shall seek an apportionment of liability. Any such writ, summons and complaint, hereinafter called the apportionment complaint, shall be served within one hundred twenty days of the return date specified in the plaintiff's original complaint ...
(d) Notwithstanding any applicable statute of limitation or repose, the plaintiff may, within sixty days of the return date of the apportionment complaint served pursuant to subsection (a) of this section, assert any claim against the apportionment defendant arising out of the transaction or occurrence that is the subject matter of the original complaint.Emphasis added.
In Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 14, 848 A.2d 418 (2004), the court held that the 120-day time limitation contained in § 52-102b(a) is mandatory, the trial court lacks the authority to extend the limitation period, and that noncompliance with § 52-102b implicates a court's personal jurisdiction. The court found that § 52-102b conferred rights that did not exist at common law, and, therefore, the statute's time limitations are substantive in nature, rather than procedural. Although the specific analysis of Lostritto pertained to the 120-day time limit of § 52-102b(a) in which to serve an apportionment complaint, the court's analysis is equally applicable to the sixty-day time limit in which to assert a direct action under § 52-102b(d).
In her Objection to Motion to Dismiss the plaintiff argues that the 60-day time period found in § 52-102b(d) is not mandatory. The plaintiff has cited no authority for her position, which, if true would mean that although a defendant has only 120 days to bring in a third party for apportionment purposes, a plaintiff who wishes to bring an action for damages against a third party has an unlimited time in which to do so.
A number of trial courts have interpreted the sixty-day time limitation in § 52-102b(d) as being mandatory. See, e.g. Shepard v. Chelsea Square Condominium Ass'n, Inc., 2011 WL 6413806, at * (Dec. 1, 2011) [ 53 Conn. L. Rptr. 49]; Crandall v. Crandall, 2010 WL 4942825, at *4 (Nov. 15, 2010) [ 50 Conn. L. Rptr. 887]; Ortiz v. Debbraccio, 2009 WL 3086482, at *2 (Aug. 26, 2009) [ 48 Conn. L. Rptr. 423] (Section 52-102b(d) " gives a plaintiff who initially chose not to directly sue the apportionment defendant discretion to decide whether to now bring such a claim. However, the word ‘ may’ does not affect the time limitation within which that choice must be made" Ortiz, supra, at *3.)
The plaintiff argues that if the court finds that the sixty-day period in § 52-102b(d) is mandatory, then the limitation should be excused for equitable reasons. The court has made limited exceptions for equitable reasons in situations where the parties could not possibly have acted within the time frame required by the state. See, e.g. Pedro v. Miller, 281 Conn. 112, 914 A.2d 524 (2007). In this case the plaintiff knew about the sixty-day requirement and should have known that under Lostritto, the court did not have the power to extend the mandatory sixty-day period in which to sue over directly against St. Francis.
The amended complaint dated April 9, 2012, in which the plaintiff asserted claims against St. Francis, the apportionment defendant, was filed well beyond sixty days from the October 25, 2011 return date of the apportionment complaint. Therefore, the court does not have personal jurisdiction over St. Francis and the Motion to Dismiss is hereby granted.