Opinion
No. FSTCV10-6007151S
May 18, 2011
Memorandum of Decision on Motions to Strike Apportionment Complaint (Nos. 105 107)
FACTUAL BACKGROUND
In this matter, the plaintiff, Felix Santos (Santos), has brought suit against the defendant/apportionment plaintiff, Enrique Jinete (Jinete), for injuries that Santos allegedly suffered in a motor vehicle accident. As alleged in Santos' complaint, on March 26, 2010, Santos was operating his motor vehicle on the northbound side of Route 15 in Stamford. When Santos came to a stop in response to a line of traffic, Jinete's vehicle collided with the back end of Santos' automobile, which also caused Santos to hit a vehicle in front of him. Santos alleges that this accident was caused by Jinete's negligence in that Jinete was following Santos' vehicle more closely than was reasonably prudent and traveling at an excessive rate of speed.
On December 30, 2010, Jinete filed an apportionment complaint against the State Farm Insurance Company (State Farm) pursuant to General Statutes §§ 52-102b and 52-572h. The apportionment complaint alleges that at the time of the subject automobile accident, Jinete was struck from behind by an unidentified "force and run" driver and pushed into the Santos vehicle. According to Jinete, the injuries and damages sustained by Santos in this incident were caused in whole or in part by the negligence of this unidentified driver. The apportionment complaint further alleges that State Farm insured Santos and the vehicle that Santos was operating at the time of this traffic accident. This insurance policy included uninsured motorist benefits. As a result, Jinete alleges that State Farm is liable to Santos for the imputed negligence of this force and run tortfeasor.
On January 10, 2011, plaintiff Santos filed a motion to strike the apportionment complaint along with a memorandum of law in support of his motion. Santos moves to strike the apportionment complaint on the grounds that: (1) apportionment complaints may not be brought against unidentified persons such as the driver in whose shoes State Farm stands; and (2) Jinete may not seek apportionment against Santos' uninsured motorist provider unless Santos has sued the provider because there is no privity of contract between Jinete and Santos' insurer. On January 28, 2011, Jinete filed a memorandum of law in opposition to this motion. After the court took this motion on the papers on January 31, 2011, apportionment defendant State Farm also filed a motion to strike the apportionment complaint and a supporting memorandum of law on February 22, 2010 (No. 107) which came up on the March 14, 2011 short calendar where it was also submitted on the papers. This memorandum of decision will therefore be dispositive of both motions to strike which are based on virtually identical arguments.
Although Santos has filed a motion to strike an apportionment complaint that is not directed to him, Santos' standing to file this motion is not an issue. See, e.g., Sheehan v. Donkor, Superior Court, judicial district of New Britain, Docket No. CV 02 0513224 (January 6, 2003, Kocay, J.) ( 33 Conn. L. Rptr. 664, 666 n. 1) (stating, in an automobile accident case, that the plaintiff has standing to attack an apportionment complaint).
DISCUSSION
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). In a motion to strike, "the moving party admits all facts well pleaded." RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 383 n. 2, 650 A.2d 153 (1994). Therefore, "[i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Batte-Homgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007). Nevertheless, "[a] motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. 498. When deciding a motion to strike, the court must "construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117, 889 A.2d 810 (2006).
In their respective memoranda of law, Santos and State Farm cite a number of Superior Court cases that stand for the proposition that a defendant in an automobile collision action cannot seek apportionment from the plaintiff's uninsured motorist provider for an unidentified driver's negligence when the plaintiff has not sued the insurer or the unidentified driver. All of these cases reason as such because apportionment complaints cannot be brought against unidentified persons and the uninsured motorist provider stands in the shoes of the phantom driver. Additionally, these cases hold that this type of apportionment complaint is legally improper because a defendant may not seek apportionment from a plaintiff's uninsured motorist provider because there is no privity of contract between the defendant and the plaintiff's insurance company. In response, Jinete argues that the position is contrary to the Connecticut Supreme Court's holding in Collins v. Colonial Penn Ins. Co., 257 Conn. 718, 778 A.2d 899 (2001), and the principles of tort reform in Connecticut. Jinete's brief also cites to a number of Superior Court cases that ostensibly have allowed a defendant to seek apportionment from the plaintiff's uninsured motorist insurer when there is an unidentified driver involved.
Although the issues presented in this motion have yet to be examined directly by the appellate courts of this state, as aptly stated by one Superior Court judge, "[t]his case threads the factual needle between the holdings of Eskin v. Castiglia, 253 Conn. 516, 753 A.2d 927 (2000) (apportionment denied, and Collins v. Colonial Penn [Ins. Co., supra, 257 Conn. 718], apportionment required." Wheeler v. Wojtowicz, Superior Court, judicial district of New Britain, Docket No. CV 08 5009900 (September 16, 2009, Zemetis, J.) [ 48 Conn. L. Rptr. 578]. In Eskin, the plaintiff brought a negligence action against the defendant for injuries suffered in an automobile accident. The defendant then brought an apportionment complaint against a "Jane Doe" unidentified driver. Following the filing of the defendant's apportionment complaint, the plaintiff subsequently filed a motion to strike that was granted by the trial court. On appeal, the Connecticut Supreme Court upheld the trial court and determined that a defendant cannot apportion liability against an unknown person pursuant to § 52-102b(a). The Supreme Court stated that
General Statutes § 52-102b(a) provides in relevant part: "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 . . . The person upon whom the apportionment complaint is served, hereinafter called the apportionment defendant, shall be a party for all purposes, including all purposes under section 52-572h."
. . . [B]y its plain language, § 52-102b(a) requires the serving of a writ, summons and complaint upon a person with whom a defendant wishes to apportion liability. The text of § 52-102b also provides that section "shall be the exclusive means by which a defendant may add a person who is or may be liable pursuant to section 52-572h for a proportionate share of the plaintiff's damages as a party to the action." General Statutes § 52-102b(f). We conclude that, because (1) there is no provision within § 52-102b for service on an unidentified person via publication or by any other means, (2) an unidentified person cannot be served with a writ, summons or a complaint, and (3) the statute provides that it is the "exclusive means"; General Statutes § 52-102b(f); of adding to a case an apportionment defendant who may be liable to the plaintiff pursuant to § 52-572h, the text of § 52-102b implies that the legislature intended to exclude unidentified persons from the universe of persons or entities subject to being named as an apportionment defendant.
General Statutes § 52-572h provides in relevant part: "(c) In a negligence action to recover damages resulting from personal injury, wrongful death or damage to property occurring on or after October 1, 1987, if the damages are determined to be proximately caused by the negligence of more than one party, each party against whom recovery is allowed shall be liable to the claimant only for his proportionate share of the recoverable economic damages and the recoverable noneconomic damages except as provided in subsection (g) of this section."
Eskin v. Castiglia, supra, 253 Conn. 523-24.
In contrast, in Collins, the plaintiff brought suit against a defendant, as well as her insurer, Colonial Penn, which acted as a surrogate for an unidentified tortfeasor. Colonial Penn then settled its claim with the plaintiff. Following this settlement, the plaintiff continued the case against the defendant, who wanted a jury instruction on apportionment of liability between himself and Colonial Penn. The trial judge refused to give such an instruction. On appeal, the Supreme Court ruled that it was error for the trial court to refuse to give such an instruction. The Connecticut Supreme Court stated that,
[W]e recognize that the damages sustained by a claimant may be caused by the negligence of more than one tortfeasor under § 52-572h. Also, it is important to note that the purpose of § 52-572h was to change the common law of joint and several liability such that a defendant would be liable only for that portion of the damages for which he was responsible. In order to be consistent with both the language and the underlying policy of § 52-572h, this is a case where we acknowledge . . . the sui generis nature of uninsured motorist benefits. Colonial Penn acted, in part, as a surrogate for the third party tortfeasor as well as a party against whom the plaintiff maintained a first party contract claim . . . In the present case, Colonial Penn was not only a named, identifiable party in the original complaint, but its function in this case was to litigate the blameworthiness of the unidentified hit-and-run driver. That is, its liability in the uninsured motorist contract was predicated on the negligence of the phantom driver.
The plaintiff, in her complaint, linked the cause of her damages not only to the negligence of the defendant, but also to the negligence of the unidentified driver when it named Colonial Penn as a defendant . . . It is clear that, not only was the cause of action against Colonial Penn based on the negligence of the unidentified driver, but that the plaintiff affirmatively alleged that the unidentified driver and the defendant caused her injuries.
(Emphasis added; citations omitted.) Collins v. Colonial Penn Ins. Co., supra, 257 Conn. 737-39.
As further stated by the Supreme Court,
[O]ur conclusion in the present case should not be interpreted as recognizing no legal distinction between an uninsured motorist carrier and the unidentified tortfeasor . . . In the present case, however, it would be inequitable and contrary to the spirit underlying § 52-572h, to allow a plaintiff who does have uninsured motorist coverage and has collected an amount pursuant to a settlement in a automobile accident involving multiple tortfeasors, to deny application of the principles of Tort Reform II, namely, that each individual tortfeasor pay its fair share or portion of damages sustained. This is especially significant because Colonial Penn was brought into the litigation solely to litigate the blameworthiness of the unidentified driver. We conclude that in this case there should be no substantive difference for apportionment purposes merely because the other tortfeasor is unidentified, so long as the underinsured carrier is named in the complaint to act as the unidentified driver's surrogate.
(Citations omitted; emphasis addded.) Collins v. Colonial Penn Ins. Co., supra, 257 Conn. 743-44.
In a footnote, the Collins court also noted the following:
Our decision in the present case is not inconsistent with our decision in Eskin v. Castiglia, supra, 253 Conn. 516. In Eskin, the defendant sought to file an apportionment complaint, pursuant to General Statutes § 52-102b, against an unidentified hit-and-run driver, under a John Doe name . . . We held that the defendant could not file such a complaint for two reasons. First, under § 52-102b, we recognized that there has to be an identifiable person upon whom to serve a complaint . . . Second, we recognized that allowing such a complaint would be contrary to the policy underlying § 52-572h that limits `the universe of negligence' to be considered to identifiable persons . . . Despite the fact that, in the present case, the unidentified tortfeasor, for whose conduct the plaintiff's uninsured motorist carrier settled, was also a hit-and-run driver, Eskin does not control our decision herein. Because Colonial Penn already was in the case as an original codefendant, the obstacle of § 52-102b is not present. Thus, `the universe of negligence' in this case includes the negligence of the unidentified driver because Colonial Penn is acting, in part, as a surrogate. Significantly, we also note that an injured plaintiff may recover money from an uninsured motorist carrier who serves as a surrogate for the unidentified person, unlike where a plaintiff merely had brought an action against an unidentified person as in Eskin. (Emphasis added.) Collins v. Colonial Penn Ins. Co., supra, 257 Conn. 739-40 n. 21.
Unlike the plaintiff in Collins, Santos did not name State Farm as a party in this action. Accordingly, this case is similar to and governed by Santana v. Tom, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 07 5002545 (November 17, 2008, Rubinow, J.) ( 46 Conn. L. Rptr. 665). In Santana, the plaintiff brought an action against multiple defendants stemming from a traffic accident. Some of these defendants then filed an apportionment complaint against the plaintiff's uninsured motorist provider, Continental, because of the negligence of an unidentified driver. When granting Continental's motion to strike, the court explained that
The critical distinction between the present case and Collins is that the named plaintiff did not serve a complaint upon his uninsured motorist carrier, or seek to recover damages from an unidentified driver directly or through a surrogate by naming that unidentified driver as a defendant in his original or amended complaint. Despite [the defendants'] professed theory of liability, the named plaintiff has not alleged that a fourth, phantom, driver was responsible for the accident so that Continental should provide coverage for his damages and losses under a "hybrid" theory rendering the uninsured motorist carrier liable. Therefore, the defendants have no basis on which to apportion Continental: they lack privity of contract with Continental and cannot require Continental to stand in the shoes of an unidentified driver who was not named as a defendant by the plaintiff in his complaint. The surrogate analogy relied on by the Collins court is fundamentally inapplicable in this situation because the plaintiff has not identified a tortfeasor for whom Continental might be contractually liable. Under Collins, a defendant cannot bring an apportionment complaint against an uninsured motorist carrier when neither the carrier nor an unidentified driver has been named as a defendant in the underlying complaint: in such a case, where the plaintiff has not identified negligent conduct for which the uninsured motorist carrier may be contractually liable, § 52-572h(o) functions to preclude apportionment of liability on any basis other than negligence. Without the surrogacy hook, the defendants' apportionment claim loses its tortious element and `hybrid' nature, thus rendering it inappropriate for apportionment. Id., 668-69.
General Statutes § 52-572h(o) provides: "Except as provided in subsection (b) of this section, 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, strict liability or liability pursuant to any cause of action created by statute, except that liability may be apportioned among parties liable for negligence in any cause of action created by statute based on negligence including, but not limited to, an action for wrongful death pursuant to section 52-555 or an action for injuries caused by a motor vehicle owned by the state pursuant to section 52-556."
See also True v. Stratton, Superior Court, judicial district of New Britain, Docket No. CV 10 6005127 (January 26, 2011, Young, J.) [ 51 CLR. 368]; Mathews v. Blauvelt, Superior Court, judicial district of New London, Docket No. CV 10 6002940 (June 25, 2010, Martin, J.) ( 50 Conn. L. Rptr. 181); DiPaolo v. Rocco, Superior Court, judicial district of New Haven, Docket No. CV 09 5028530(April 6, 2010, Wilson, J.) ( 49 Conn. L. Rptr. 591); Massaro v. Craig, Superior Court, judicial district of New Haven, Docket No. CV 06 5007556 (July 27, 2009, Wilson, J.) ( 48 Conn. L. Rptr. 314) (all adopting the rationale espoused by Santana v. Tom). This court will also follow the Santana line of cases.
In his memorandum of law in opposition, Jinete cites to three Superior Court cases that purportedly stand for the legal proposition that it is permissible for a defendant to file an apportionment complaint against the plaintiff's insurance carrier for the alleged negligence of an unknown hit and run driver. The first of these cases, Leitkowski v. Safeco Ins. Co., Superior Court, judicial district of New London, Docket No. 566685 (July 29, 2004, Hurley, J.T.R.) ( 37 Conn. L. Rptr. 575), is a short memorandum of decision where the court denied a motion to strike such an apportionment complaint. Following an examination of the court's decision in Leitkowski, it is impossible to determine the precise procedural posture of the parties in that case. Nevertheless, the Leitkowski court does explicitly reference an earlier decision rendered by the same judge, Nave v. Riveria, Superior Court, judicial district of New London, Docket No. 552716 (February 7, 2002, Hurley, J.T.R.) ( 31 Conn. L. Rptr. 371). In Nave, the plaintiff brought claims against both the defendant and the plaintiff's uninsured motorist carrier as a surrogate for an unknown driver. The defendant then brought an apportionment complaint against the plaintiff's insurance provider. Although the court struck the apportionment complaint as procedurally improper because the insurance carrier was already a party in the case, the court held that apportionment was proper in this instance. Accordingly, it can be seen that Nave could actually serve to bolster Santos' and State Farm's position in this matter because the Nave court allowed apportionment when the plaintiff had already named the insurance company as a party.
Similarly, although the court in Wheeler v. Wojtowicz, supra, Superior Court, Docket No. CV 08 5009900, did deny a motion to strike an apportionment complaint, the court's reasoning actually supports the conclusion that the apportionment complaint in the present case is legally insufficient. The court's rationale for the Wheeler decision is as follows: "[t]he plaintiffs in the instant case did not move to strike the apportionment complaint as did the plaintiff in Eskin. Nor did the instant plaintiffs name their uninsured/underinsured motorist carrier as an original defendant as did the plaintiff in Collins. However, the instant plaintiffs have requested, and have now been granted absent any objection by GEICO, leave to amend their Complaint to assert a claim against GEICO for uninsured/underinsured motorist benefits prior to the time that the GEICO's motion to strike the apportionment complaint was placed on the trial court's motion calendar. Hence, the obstacle of [§ ]52-102b is not present as in Collins." (Emphasis in original; internal quotation marks omitted.) Id. With the addition of GEICO, the plaintiff's uninsured motorist provider, as a party, the "universe of negligence" properly included GEICO, and, as a result, the Wheeler court determined that it was appropriate for the defendant to be able to seek apportionment from GEICO.
The final case cited by Jinete, Luciani v. Berlingo, Superior Court, judicial district of New Haven, Docket No. CV 08 6001879 (May 19, 2008, Licari, J.) ( 45 Conn. L. Rptr. 581), does explicitly hold that a defendant can seek apportionment from the plaintiff's uninsured motorist provider when the plaintiff did not name the insurer as a party. The Luciani court stated: " Collins v. Colonial Penn Ins. Co. . . . holds that a carrier providing uninsured motorist coverage for an unidentified tortfeasor is a permissible surrogate for apportionment purposes. Whether the party seeking apportionment is a party to or a third-party beneficiary of the policy is immaterial. Apportionment, not coverage, is sought . . . This court finds no requirement in Collins that such carrier be an original defendant. The apportionment plaintiffs assert their rights, not those of the original plaintiff. Such requirement would defeat the clearly expressed policy of tort reform that each person be responsible only for his/her proportionate share of damages." (Internal quotation marks omitted.) Id., 581. The holding in Luciani is admittedly contrary to the reasoning in decisions such as Santana. This court declines to follow the appealing simplicity of Luciani because it does not take into account the appellate guidance of Eskin's holding that § 52-102b prohibits a defendant from serving an apportionment complaint on an unidentified party and the strongly worded language from Collins that apportionment was allowed in that case because the insurer was already a party, and, as a result, was properly included in the "universe of negligence."
CONCLUSION
For all of the reasons stated above, the motions filed by the plaintiff Santos and the apportionment defendant State Farm to strike the apportionment complaint filed by defendant Jinete are granted.
SO ORDERED.