Opinion
No. CV 065007278
May 27, 2008
MEMORANDUM OF DECISION RE MOTION TO STRIKE, #112
Apportionment Defendant, Barbara Ginger, filed a motion to strike the apportionment complaint dated April 10, 2007 arguing that it is barred under General Statutes § 52-102b because it was not timely filed; and because the amended complaint, upon which the apportionment complaint is based does not involve claims for personal injury, wrongful death or damage to property. The Apportionment Plaintiffs argue that the complaint was timely filed because they were not brought into the case until shortly before they filed the pleading; and because the allegations in the apportionment complaint sufficiently allege property damage. For reasons more fully set forth herein, this court grants the motion to strike.
Michael and Stacey Wuchek brought the instant action against six defendants, David Hawes, a real estate agent; the Estate of Joanne Colatosti; and John Gauthier, Cathi Alea and Beth Behan, the three heirs of the Estate of Joanne Colastosti. The complaint against the original defendants variously alleges claims of breach of contract, intentional and negligent misrepresentation and violation of the Connecticut Unfair Trade Practices Act (CUTPA). The plaintiffs then cited in W.T. Beazley Co. (Beazley), defendant Hawes' employer, and filed an Amended Complaint adding Beazley as a defendant. In the original complaint, as well as the amended complaint, the plaintiffs claim that as a result of the actions of the defendants they "suffered money damages . . ." Counts I, II, III, and IV paragraphs 19. Defendants Beazley and Hawes then filed an Apportionment Complaint against Barbara Ginger, the Wuchek's Real Estate Agent. In the Apportionment Complaint, the Defendants/Apportionment Plaintiffs allege that as a result of Barbara Ginger's failures, which allegedly caused the plaintiff to "suffer money damages," she "is or may be liable to the plaintiffs, Michael Wuchek, for a proportionate share of liability pursuant to C.G.S. § 52-572h and § 52-102b" Apportionment Complaint, ¶ 21.
Apportionment Complaint, ¶ 9: "The plaintiffs allege that, because the Premises is not connected to the public sewer, plaintiffs now have to bear the cost which will also entail having to remove and then replace a wooden deck attached to the Premises thereby causing them to suffer money damages."
Because the chronology of the service of pleadings and the filings of appearances is relevant, this court reviews the time-line now. The return date for the original complaint in this action is November 28, 2006. The plaintiffs filed service of process on Beazley on January 31, 2007. The plaintiffs filed the amended complaint, which added allegations against Beazley on February 16, 2007. The Return Date for the amended complaint was March 13, 2007. Counsel for Beazley filed an Appearance on March 7, 2007. The defendants filed an Apportionment Complaint on April 28, 2007. The apportionment defendant entered an appearance on April 20, 2007. On June 14, 2007, the apportionment defendant filed the motion to strike. This court (Robinson, J.) heard oral argument on the motion to strike (#112) on April 21, 2008.
Apportionment defendant Ginger argues that the apportionment complaint is untimely because it was filed outside the time limitations set by General Statutes § 52-102b. She also argues that the apportionment complaint is improper because it does not allege any negligence resulting in personal injury, wrongful death or property damage as required by General Statutes § 52-572h.
"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). "It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those necessarily implied from the allegations are taken as admitted . . . indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006). "We take the facts to be those alleged in the complaint and we construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007).
I.
The apportionment defendant first argues that, pursuant to § 52-102b, an apportionment complaint must be filed within 120 days of the original return date. Because the apportionment complaint was filed sixteen days after the deadline, the apportionment defendant argues it should be stricken. The defendants/Apportionment Plaintiffs respond that the 120-day requirement of § 52-102b is not mandatory and may be extended for equitable reasons. They argue that it would be equitable to extend the time in this case because Beazley was not an original defendant in this action.
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, summon 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.
In Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 33, 848 A.2d 418 (2004), the Supreme Court noted that "because . . . § 52-102b is a service provision . . . it implicates personal jurisdiction rather than subject matter jurisdiction." Further, the court noted that "[a] challenge to a court's personal jurisdiction . . . is waived if not raised by a motion to dismiss within thirty days of the filing of an appearance." Id., 32; see also Practice Book § 10-30. Practice Book § 10-32 provides, in relevant part: "Any claim of lack of jurisdiction over the person . . . is waived if not raised by a motion to dismiss." See also, Consiglio v. Streeto, Superior Court, judicial district of New Haven at New Haven, Docket No. CV 065001967 (April 11, 2008, Bellis, J.) ("[F]ailure to file a timely motion challenging lack of personal jurisdiction constitutes a waiver of one's jurisdictional challenge as a matter of law . . .")
This court finds that the motion to strike is the improper vehicle to attack the timeliness of the apportionment complaint. Even if this court were to construe the motion to strike as a misidentified motion to dismiss, the issue of timeliness has not been properly raised because it was filed more than 30 days after the filing an appearance by the apportionment defendant.
II.
The apportionment defendant's second argument is that apportionment is not proper in this case because the underlying complaint only alleges commercial damages under theories of breach of contract, intentional and negligent misrepresentation and CUTPA. The defendants/apportionment plaintiffs counter that an apportionment complaint is appropriate because there is a claim for damages to tangible property, namely the need to repair and/or replace the septic system and deck.
"It is apparent that the legislature intended § 52-102b to implement the right to apportionment that previously had been created in § 52-572h. Indeed, by its own terms, § 52-102b operates only in conjunction with § 52-572h and its primary application is to effectuate the right to apportion liability." Lostritto v. Community Action Agency of New Haven, Inc., supra 260 Conn. 25.
General Statutes § 52-572h provides, in pertinent part: "(c) In a negligence action to recover damages resulting from personal injury, wrongful death or damage to property . . . 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 such party's proportionate share of the recoverable economic damages and the recoverable noneconomic damages except as provided in subsection (g) of this section."
The apportionment defendant attacks the apportionment complaint, because she says it does not assert a claim for personal injuries, wrongful death or damage to property. The defendants/apportionment plaintiffs do not claim personal injuries or wrongful death. But, they do claim that the underlying complaint provides the basis for a claim for property damage.
"The legislative history of § 52-572h is silent regarding the legislative intent behind the use of the phrase `damage to property.' We can find no justification in that history, therefore, for reading that phrase in other than its traditional sense of physical damage to tangible property. As a matter of statutory interpretation, therefore, we simply cannot stretch the meaning of `damage to property,' as used in § 52-572h(b), to include commercial losses unaccompanied by physical damages to or loss or use of tangible property." Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 584, 657 A.2d 212 (1995).
Numerous trial courts have held that negligence actions that implicate purely commercial or economic losses are not subject to apportionment under § 52-102b and § 52-572h. See, Gauthier v. Kearns, 47 Conn.Sup. 166, 174-74, 780 A.2d 1016 (2001) (Holding that claims could not be apportioned under § 52-572h because loss of medicaid assistance does not fall under the category of damaged property); Boardman v. Webb, Superior Court, judicial district of New Haven, Docket No. CV 010448197 (January 29, 2002, Arnold, J.) [ 31 Conn. L. Rptr. 299] (Holding that negligent misrepresentation claims implicating purely economic damages could not be apportioned under § 52-102b and § 52-572h); Vaught v. Pequot Properties, LLC, Superior Court, judicial district of New London, Docket No. 554980 (June 1, 2001, Corradino, J.) [ 29 Conn. L. Rptr. 589] (Same). But, see Baldino Izzi v. Berkshire ENGG., Superior Court, judicial district of Waterbury at Waterbury, Docket No. CV 065001045 (February 16, 2007, Gallagher, J.) [ 42 Conn. L. Rptr. 782] (Court considered an allegation of loss of use of property to sufficiently support an apportionment claim for damage to property); and ACMAT Corp. v. Jansen Rogan Consulting Engineers, P.C., Superior Court, judicial district of New Britain, Docket No. CV 960474249 (February 6, 1997, Handy, J.) (Holding that apportionment claims were proper because tangible property, a heating and ventilation system, was damaged.)
A motion to strike requires the court to consider the specific allegations in the pleadings and not merely the legal and factual arguments of counsel. The allegations in the underlying complaint and the apportionment complaint allege financial and commercial losses, only. Defendants/Apportionment plaintiffs' counsel argues that these financial losses will be incurred because the plaintiffs will need to repair and/or replace property. But, in the present case, unlike in ACMAT or Baldino Izzo, the complaints merely allege that the plaintiffs suffered "money damages." There is no allegation that the plaintiffs suffered damage to property based upon the defendants' alleged negligent misrepresentation. Therefore, this court concludes that the negligent misrepresentation claim implicates only monetary or financial losses. Such losses do not support a claim for apportionment. Accordingly, the apportionment defendant's motion to strike is granted.