Opinion
FSTCV166029111S
07-19-2017
Yvonne Moore v. Overhead Door Company of Norwalk, Inc.
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE OBJECTION TO REQUEST TO AMEND (#118.00)
Kenneth B. Povodator, J.
Currently before the court is a somewhat unusual objection to a plaintiff's request to amend. This is not a " typical" objection to a request to amend calling upon the court to exercise its discretion. This is not an also-common situation involving a proposed amendment requiring the court consider relation back of the new claims to the already-existing claims, in order to determine whether the applicable statute of limitations bars the new claims. See, e.g., Briere v. Greater Hartford Orthopedic Group, P.C., 325 Conn. 198, 157 A.3d 70 (2017). This is not a situation in which the court must be mindful of the directives from appellate courts that the court should hesitate to determine legal sufficiency in the context of an objection to an amendment. See, e.g., Rizzuto v. Davidson Ladders, Inc., 280 Conn. 225, 255-57, 905 A.2d 1165 (2006). Instead, this court is faced with a somewhat unusual blend of legal principles, claimed to rise to the level of a jurisdictional issue--to what extent is the time limit set forth in General Statutes § 52-102b(d) the exclusive time limitation for a plaintiff to plead over against an apportionment defendant?
The fact pattern is relatively straightforward. On June 24, 2016, the plaintiff, Yvonne Moore, filed a complaint for negligence against the defendants, Overhead Door Company of Norwalk, Inc. and Errick J. Wellington. The complaint alleges that on October 08, 2014, the plaintiff was traveling westbound on Meadow Street in Norwalk, CT. The complaint further alleges that defendant Wellington exited a truck owned by defendant Overhead, leaving it unattended, and the truck rolled backwards down Meadow Street striking the plaintiff's vehicle. The plaintiff asserts that the defendants are responsible for the accident, including an allegation that either the defendant operator failed to apply the brakes or the brakes were defective.
On November 15, 2016, the defendant, Overhead Door, filed its as-served apportionment complaint, with a return date of December 6, 2016, directed against the apportionment defendant, Auto Repair Specialist, Inc. The defendant alleged that the plaintiff's injuries were caused in whole or in part by the negligence of the apportionment defendant in performing repairs on or about September 29, 2014, specifically relating to a claim that the shifter on the subject vehicle was worn and loose and that it failed to notify defendant Overhead that the shifter was worn and loose.
On February 10, 2017, the plaintiff filed a Request for Leave to Amend, seeking to assert a direct claim against the apportionment defendant. The apportionment defendant objected to the proposed amendment, arguing
Under C.G.S. § 52-102b(d), if a Plaintiff elects to assert a direct claim against an apportionment defendant, she has sixty days from the return date of the apportionment complaint to do so. Here, the return date of the Apportionment Complaint is December 6, 2016. The statutory time limit for the Plaintiff to plead over expires on February 6, 2017. The Plaintiff's Request for Leave to Amend is beyond the statutory time limit for her to amend her complaint to assert a direct claim against the Apportionment Defendant.
Furthermore, if the Plaintiff is permitted to amend, the amended complaint would be beyond the two-year statute of limitations of C.G.S. § 52-584. The alleged date of accident is October 8, 2014. The expiration of the two-year statute of limitations, therefore, is October 8, 2016.
Seemingly, then, the objection has identified interrelated and facially fatal problems with the arguably-belated proposed amendment.
Almost 2 1/2 months after the filing of this objection, the plaintiff filed a reply. It is not clear whether the initial portion of the reply is intended to be historical or a partial explanation/justification--the plaintiff observes that the apportionment defendant did not file an appearance until almost 2 months after the return date set forth on the apportionment complaint, seemingly suggesting that the plaintiff could not plead over against the apportionment defendant until after an appearance had been filed. If that is intended as an explanation, it is not entitled to any weight--no explanation has been provided as to why that timeline might provide an excuse, as the plaintiff could have served the apportionment defendant directly, without regard to its non-appearance status, relying instead on the provisions of Practice Book § 10-12(c) and the final sentence of Practice Book § 10-13. See, e.g., Lamb v. Mitchell, FSTCV166027382S. There also was a window of opportunity--if brief--after an appearance had been filed but before expiration of the 60-day period set forth in the statute.
The plaintiff then goes on to discuss the " discovery" component of General Statutes § 52-584, claiming that the alleged negligence of the apportionment defendant was not reasonably knowable to the plaintiff until well after the accident had occurred, such that the date of the accident is not the appropriate benchmark for the statute of limitations. Rather, the date of discovery of facts suggestive of the apportionment defendant's negligence is the proper benchmark, so long as it does not extend the overall limitations period beyond three years.
Focusing on what might be characterized as a gap in the plaintiff's analysis, the apportionment defendant filed a reply, elaborating on why it believes that the provisions of General Statutes § 52-102b(d) control, effectively precluding consideration of the any other legal considerations. The apportionment defendant characterizes the plaintiff's argument as potentially eviscerating the legislative intent behind the time limitations set forth in the apportionment statutes.
But what was the legislative intent? The first place to look for and find legislative intent is in the text of what the General Assembly said--the statutory language. The context in which the language is to be applied also must be considered, as language that may be unambiguous in one context may be ambiguous in another. These considerations must also be recognized in addressing applicability of broad-brush appellate court statements as to the meaning and application of the relevant statutory language.
The court must first start with consideration of the existence of possibly-controlling appellate decisions; the court is bound to follow relevant appellate decisions and so regardless of a trial court's own efforts to interpret a statute, if there is an applicable appellate decision, the trial court must follow it.
General Statutes § 1-2z requires a court to start with the language of the statute, but if there is appellate authority that has provided an authoritative interpretation, the court must rely on that appellate interpretation.
Having said that, the appellate authorities cited by the apportionment defendant do not address this situation.
The sole appellate level case cited in the reply is Eskin v. Castiglia, 253 Conn. 516, 753 A.2d 927, 935 (2000). That case stands for a number of seemingly unremarkable propositions, most directly that in order to add an apportionment defendant, one must comply with the statutory provisions set forth in General Statutes § 52-102b, with a corollary proposition, relying largely on General Statutes § 52-572h, that an apportionment defendant must be an identified (and properly served) party, not an unknown person identifiable only via pseudonym.
The court is starting with the apportionment defendant's reply because that was the first opportunity to respond to the plaintiff, who first was able to articulate the details of her position only after the objection had been filed by the apportionment defendant.
In its initial memorandum in support of the objection, the apportionment defendant cited and relied upon Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 848 A.2d 418 (2004), for the proposition that " our Supreme Court has held that '. . . the 120-day time limitation required by 52-102b(a) is mandatory . . . and further conclude that noncompliance with § 52-102b implicates a court's personal jurisdiction, not subject matter jurisdiction.'" Lostritto, however, articulated propositions unrelated to this case, chiefly that the procedure for initially serving an apportionment complaint--bringing an apportionment defendant into the case--is purely statutory and mandatory as to time limits. The court emphasized that there was no common-law right for a defendant to cite in an apportionment defendant such that the procedure was a creation of statute such that, in turn, the time limits for doing so had to be treated as mandatory. To emphasize the point--the quoted language, above, relates to the time period for initially summoning an apportionment complaint; the issue before this court is the appropriate time limit(s) for a plaintiff to plead over, after an apportionment defendant properly has been summoned.
An issue closer to this case, discussed in Lostritto (but not discussed by the apportionment defendant in this case), is the claimed right of a defendant to rely on the non-expiration of an applicable statute of limitation as an alternative to reliance on the 120-day period provided for serving an apportionment defendant; 269 Conn. 35-38. (More precisely, there had been an attempt to utilize and rely upon the statutory provision allowing for an extension of the medical malpractice statute of limitations, as provided by General Statutes § 52-190a.) The majority concluded that the two statutes--§ 52-190a and § 52-102b--were incompatible. As will be discussed below, the distinction identified by the majority arguably supports the plaintiff's position here, based on the distinction identified in the previous paragraph of this decision.
Returning to the reply memorandum, the apportionment defendant cites and relies upon Tine v. Baker, No. 116645, 2000 WL 371201 (Conn.Super.Ct. Mar. 31, 2000) [27 Conn.L.Rptr. 57, ]. Other than the court's decision largely foreshadowing the Supreme Court's decision in Lostritto (decided four years later), there is nothing in the decision directly addressing the current legal scenario.
The apportionment defendant also cites Morin v. Cook, No. CV 980058495 S, 1999 WL 163647 (Conn.Super.Ct. Mar. 5, 1999), the holding being limited to the unremarkable and undisputed proposition that the 120-day period for serving and bringing in an apportionment defendant is mandatory. It is noteworthy, however, that the court explicitly distinguished a defendant bringing in an apportionment defendant from a situation in which a plaintiff might try to assert a claim against that party:
Section 52-102b(f) clearly states that § 52-102b is the " exclusive means" to add an apportionment defendant to an action. The fact that the plaintiff as opposed to the defendants, could have pursued an action against Davey Tree within two years is immaterial. The defendants make no claim that they suffered personal injury or property damage by virtue of the purported negligence of Davey Tree. Rather, they seek to add Davey Tree to this action to alleviate them from potentially bearing the entire burden of compensating the plaintiff for her injuries.
There also is citation to yet another pre- Lostritto decision, Winiarski v. Hall, No. CV960566277S, 1997 WL 803858 (Conn.Super.Ct. Dec. 19, 1997) [21 Conn.L.Rptr. 514, ], which again relies upon the inapplicability of any limitation period other than as set forth in § 52-102b, but again in the context of an initial apportionment complaint (which is not the issue before the court).
Coming closest to the case at hand is McQueen v. Sielev Associates, No. CV970055418, 1997 WL 729103 (Conn.Super.Ct. Nov. 17, 1997) [20 Conn.L.Rptr. 665, ], in that an issue in the case is the ability of a defendant to plead over against an apportionment defendant (with a subsidiary issue of whether the apportionment defendant was properly in the case). But in identifying the apportionment statute as the sole applicable source of a limitation period, the court seems to have acknowledged at least the possibility that given other facts, the ordinary statute of limitations might have been an alternate source:
The parties concur that the ordinary statute of limitations for negligence actions, § 52-584, expired before the plaintiff commenced the new action against CREM. Consequently, the viability of the plaintiff's action against CREM depends on the applicability of § 52-102b(d).
Indeed, elsewhere, the decision made the case for the plaintiff here even more clearly:
Occasionally, a defendant in a negligence case will be in a better position to recognize that the negligence of a third party may have contributed to the plaintiff's harm. The statutory scheme set forth in § 52-102b demonstrates legislative recognition of this fact by permitting a defendant to file an apportionment complaint so that the trier-of-fact might consider the activities of a third party in reaching a fair verdict, and by providing a sixty-day window of opportunity, beyond the statute of limitations, for a plaintiff to sue that third party once alerted to that party's relationship to its case by virtue of the filing of the apportionment complaint. In this sense, § 52-102b(d) is remedial as to the bar otherwise created by § 52-584, the statute of limitations applicable to negligence claims. (Emphasis added.)
The apportionment defendant quotes only a portion of this passage and adds the following excerpt from the decision:
The clear intent of § 52-102b(d) is to provide a plaintiff a relatively short period of time, sixty days, in which to institute an action against a party about whom the plaintiff may have been unaware until the apportionment complaint was filed. Once a plaintiff is alerted to the existence of a potential, additional tortfeasor, the remedial goal of § 52-102b(d) has been achieved.
This last passage must be interpreted in light of the facts of the case--the general statute of limitations had expired, such that § 52-102b was the only available statutory basis. (Conversely, as the plaintiff notes in its sur-reply, there were at least two separate actions, and there was an issue as to whether the expiration of the apportionment deadline in one case precluded utilization of the apportionment timeframe in a second case, a procedural overlay defying general application.)
Thus, the court is satisfied that none of the cases cited by the apportionment defendant clearly and directly supports its position, and carefully examined, McQueen at least mildly supports the plaintiff's position.
As noted earlier, the court believes that Lostritto also, at least mildly, supports the plaintiff's position. In Lostritto, as in most of the cases cited by the apportionment defendant, the focus of attention is on the initial apportionment complaint and the process by which the apportionment defendant is brought into the case. In rejecting the utilization of the medical malpractice statute of limitations (or the statutory extension thereof), the court noted that the statute of limitations in question explicitly was applicable to claims for compensation, whereas a statutory apportionment complaint is not an affirmative claim for relief but rather a special statutory creation for purposes of allocation of liability. After repeating its determination that the time limit set forth in § 52-102b(a) was mandatory, the court stated:
Second, § 52-190a, the statute on which the defendants premised their request for an extension of time, does not apply to apportionment claims under § 52-102b by virtue of the express wording of the statute. Section 52-190a(a) provides in relevant part that " [n]o civil action shall be filed to recover damages resulting from personal injury or wrongful death occurring on or after October 1, 1987, whether in tort or in contract, in which it is alleged that such injury or death resulted from the negligence of a health care provider, unless the attorney or party filing the action has made a reasonable inquiry as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant . . ." (Emphasis added.) By its own terms, § 52-190a(a) applies only to those actions in which a party seeks " to recover damages . . ." Pursuant to § 52-102b(a), the demand for relief in an apportionment complaint seeks only an " apportionment of liability." " Liability" refers to a legal obligation or responsibility; Black's Law Dictionary (6th Ed. 1990); whereas " damages" refers to " monetary compensation" for loss or injury. Id. The terms are not synonymous. Accordingly, § 52-190a, which applies only to civil actions " to recover damages, " does not apply to apportionment complaints, which seek only an apportionment of liability.Lostritto, 269 Conn. at 36.
That seemingly determinative distinction, however, does not apply when considering a plaintiff seeking to plead over against an apportionment defendant--in that scenario, there is an affirmative effort to obtain a financial recovery against the other party. The claim is not for apportionment and therefore only a determination of liability, but also seeks damages. Although not every statute of limitations contains an explicit reference to seeking recovery of damages, the statute of limitations generally applicable to negligence actions, General Statutes § 52-584, does contain such an explicit reference as its introductory language (" No action to recover damages for injury to the person . . ." (emphasis added)).
Note, too, that the reference to the determination that the time limit was mandatory likewise was in the context of initially summoning an apportionment defendant, under subsection (a); part of the rationale for that mandatory characterization was that apportionment was not a common-law concept, whereas a suit by a plaintiff against a responsible party--even if belatedly discovered--is firmly rooted in common-law concepts. Perhaps simplistically, Lostritto and most of the cases cited by the apportionment defendant focused solely on subsection (a) whereas this case only involves subsection (d) of § 52-102b.
Finally, the language of the statute itself supports this interpretation. Subsection (d) starts with the relevant language: " Notwithstanding any applicable statute of limitation or repose . . ." The word " notwithstanding" means, or is synonymous to, words and phrases such as: although, even though, though, in spite of the fact that, despite the fact that, etc. The clear intent of subsection (d), then, is that even if the statute of limitations might otherwise be a bar, a party nonetheless has 60 days in which to plead over. The concept of " notwithstanding any applicable statute of limitations" is unnecessary if the statute of limitations has not expired or is not otherwise an issue. To put it another way, as suggested in the McQueen decision, the explicit time limit for pleading over is only applicable in the event that the statute of limitations otherwise might bar such a claim. The 60 days beyond the expiration of the statute of limitations is unneeded if there is an attempt to plead over within the applicable limitations period.
Viewed from an alternate perspective, notwithstanding the apportionment process and statute, as long as the statute of limitations has not expired, a plaintiff generally can seek to implead or otherwise directly assert a claim against a newly discovered defendant. Under the apportionment defendant's interpretation, however, apportionment cuts off the otherwise availability of the full time limit set forth in the applicable statute of limitations. Again, this is not the process by which an apportionment defendant is initially brought in, requiring a new statutory procedure without counterpart in common law, but rather seeks to impose a new limit on the ability of a plaintiff to seek a recovery directly from a newly-discovered potentially-responsible party. (As noted in McQueen, sometimes the defendant is the source of information about a prospective liable party, otherwise unknown to the plaintiff.)
There is a difference between identifying the scope of a new statutory procedure created by the legislature, and construing that procedure to have an unarticulated goal (or unintended effect) of limiting a right to otherwise available common-law remedies. Under the apportionment defendant's interpretation, if a lawsuit were commenced within a year of the underlying incident, a defendant would have approximately four months to file an apportionment complaint and the plaintiff would have at most two additional months in which to plead over, cutting off half a year of the otherwise applicable time for asserting a claim against a new defendant. It is only because the plaintiff is relying on the discovery aspect of § 52-584 that the effect is not quite as stark and startling.
For purposes of this objection, the court cannot adjudicate, with finality, whether the discovery prong of § 52-584 actually is applicable. There is at least a sufficient facial claim that the court must overrule the objection to the amendment, seeking to assert a direct claim against an already-present party, the apportionment defendant. If the apportionment defendant chooses to do so, it may file any appropriate defense, including the statute of limitations. The court can determine, however, the legal framework, and notwithstanding the apportionment defendant's arguments, there is no legal impediment to the plaintiff amending her complaint to assert a claim against an existing party (the apportionment defendant), subject to any applicable limitations period.
Conclusion
The court concludes that the statutory language " [n]otwithstanding any applicable statute of limitation or repose . . ." is an expansion of the time within which a plaintiff may assert a claim, in the typical scenario where an apportionment complaint is served as or after the statute of limitations expires. It creates an exception to a time bar that might be imposed by the otherwise presumptively " applicable statute of limitation or repose." The court rejects the proposed interpretation whereby § 52-102b(d) wholly supersedes the " applicable statute of limitation or repose, " and therefore might actually shorten the available time for a plaintiff to assert a claim.
Section 52-102b(a) provides that " [t]he 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." The court necessarily interprets " all purposes" as authorizing the filing of other claims against the new party, subject to applicable limitations periods, except to the extent that § 52-102b expressly provides otherwise.
For all these reasons, and subject to the identified qualifications, the objection is overruled.