July 29, 2004
MEMORANDUM OF DECISION RE APPORTIONMENT DEFENDANT'S MOTION TO STRIKE (#106)
Before the court is the apportionment defendant's motion to strike the apportionment complaint. The movant seeks to strike the apportionment complaint on the ground that apportionment does not lie in an uninsured motorist claim because such a cause of action sounds in contract and not in tort. In so moving, the apportionment defendant relies on Henry v. Allstate Ins. Co., Superior Court, judicial district of Waterbury, Docket No. CV 96 134412, 21 Conn. L. Rptr. 113 (January 7, 1998, Shortall, J.). The decision in Henry v. Allstate Ins. Co., supra, Superior Court, Docket No. CV 96 134412, was rendered, however, prior to the Supreme Court's ruling in Collins v. Colonial Penn Ins. Co., 257 Conn. 718, 733, 778 A.2d 899 (2001), whereby the court held that an action seeking uninsured motorist benefits is "not purely contractual in nature." The Supreme Court went on to hold that "because of the hybrid nature of uninsured motorist coverage, the uninsured carrier operates in part for the financially irresponsible tortfeasor . . . [The uninsured is therefore entitled] to recover as damages . . . her damages after they properly are apportioned pursuant to the dictates of § 52-572h." Id., 732, 742. Moreover, this court in Nave v. Rivera, Superior Court, judicial district of New London, Docket No. CV 0552716 (February 7, 2002, Hurley, J.T.R.) ( 31 Conn. L. Rptr. 371, 372), held that a "[carrier's right to apportionment of liability is established by General Statutes 52-572h(c), and is supported by [ Collins v. Colonial Penn Ins. Co.]." Accordingly, the apportionment defendant's motion to strike in the present matter is denied.
D. Michael Hurley, JTR