Opinion
No. CV-08-5019246S
August 26, 2009
MEMORANDUM OF DECISION
On April 1, 2008, a complaint with a return date of May 13, 2008 was filed in this case, alleging negligence in a single-count on the part of the defendant Dino Dabbraccio in the operation of his motor vehicle. On September 17, 2008, the defendant filed an apportionment complaint, dated August 26, 2008 and served on September 10, 2008, against Joan Means (Means) claiming that her negligence in bringing her vehicle to an abrupt stop was the cause of the accident in which the plaintiff Ortiz's vehicle was struck. The return date of the apportionment complaint was September 30, 2008. On April 16, 2009, the plaintiff, Julio Ortiz (Ortiz) filed a "Notice of Revised Complaint" which contained a second count in which Ortiz appears to be seeking apportionment damages from the defendant Means pursuant to General Statutes § 52-572h (Second Count, ¶ 9). This pleading was not served on the defendant Means, but rather was mailed to her appearing counsel and so certified. On April 24, 2009, Means objected to the notice of revised complaint which this court, on May 12, 2009, construed as a motion to strike and granted, as the plaintiff's response was not yet on file. On June 5, 2009, this court granted the plaintiff's motion for reconsideration and agreed to hear argument on the substance of the parties' claims on June 29, 2009. On that date, this court directed the parties to more specifically brief the relevant issues. Briefs were filed as directed on July 13, 2009.
Dabbraccio is the correct spelling of the defendant's last name, but the court file and docketing information spells it "Debbraccio."
It is conceded that the "Revised Complaint" was filed more than sixty days after the return date of the apportionment complaint. It is further conceded that it was filed within the two-year statute of limitations for the underlying accident.
General Statutes § 52-102b(a) permits a defendant in a civil action to file an apportionment complaint within 120 days of the return date of the plaintiff's original complaint. General Statutes § 52-102b(d) provides: "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."
Means maintains that § 52-102b(d) required Ortiz to serve her with a complaint alleging a direct claim within sixty days of the return date of the apportionment complaint whether or not the statute of limitations had run. Ortiz responds that § 52-102b(d) does not apply when, as here, the statute of limitations has not run. Citing to certain legislative history, he claims the statute was enacted to give a plaintiff additional time to plead over when an apportionment complaint is filed near the expiration of the statute of limitations and that was the sole purpose of the sixty-day provision. In other words, Means argues the sixty-day period set forth in § 52-102b(d) is mandatory, while Ortiz argues that is merely directory and therefore permissive.
"General Statutes § 52-102b is clear and unambiguous." Paul v. McPhee Electrical Contractors, 46 Conn.App. 18, 22, 698 A.2d 354 (1997). Under those circumstances, the court cannot consider "extratextual evidence of the meaning of the statute." Tocco v. Wesleyan University, 112 Conn.App. 28, 31, 961 A.2d 1009 (2009). The Supreme Court has held that while § 52-102b "created rights that did not exist at common law." Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 27, 848 A.2d 418 (2004), its "primary application is to effectuate the right to apportion liability . . . and make uniform the method of apportioning liability." Id., 25-26. In Lostritto, the court also concluded "that § 52-102b is a service provision . . . that implicates personal jurisdiction rather than subject matter jurisdiction." Id., 33. Nonetheless, the Lostritto court determined that an apportionment complaint that was not filed within the 120 days mandated by § 102b(a) must be dismissed. But see Pedro v. Miller, 281 Conn. 112, 914 A.2d 524 (2007) (Certain equitable considerations may justify an exception to the 120-day mandatory time limitation.)
The Superior Court has repeatedly determined that the sixty-day limit for asserting a direct claim against an apportionment defendant contained in § 52-102b(d) is mandatory. See, e.g., Schupp v. Golba, Superior Court, judicial district of New Haven, Docket No. CV 05-4005234 (Feb. 15, 2006, Robaina, J.); Demers v. Demers, Superior Court, judicial district of Waterbury, Docket No. CV 01 0166813 (June 8, 2004, Matasavage, J.) [37 Conn. L. Rptr. 230]; Perazelli v. Tilcon, Superior Court, judicial district of Waterbury, Docket No. CV 99 0154903 (November 6, 2000, Rogers, J.); Becker v. Cody, Superior Court, judicial district of Fairfield, Docket No. CV 97 0348815 (March 31, 1999, Nadeau, J.) (24 Conn. L. Rptr. 323). Ortiz seeks to distinguish these holdings by arguing that they do not apply when a direct claim has been brought within the two-year statute of limitations, General Statutes § 552-284, although concededly more than sixty days after the service of the apportionment complaint. Such an interpretation of § 52-102b(d) would render the sixty-day time limitation meaningless. Moreover, it would lead to precisely the type of "malleable approach" to bringing claims that the court criticized in Lostritto, supra, 235 Conn. 28.
"In construing a statute, common sense must be used and courts must assume that a reasonable and rational result was intended . . . It is a basic tenet of statutory construction that the legislature [does] not intend to enact meaningless provisions . . . there is a purpose behind every . . . clause . . . used in an act and . . . no part of a statute is superfluous." (Internal quotation marks omitted; citations omitted.) Rocco v. Garrison, 268 Conn. 541, 550, 848 A.2d 352 (2004). There is no rational reason for the clause "within sixty days of the return date of the apportionment complaint served pursuant to subsection (a) of this section" other than to set forth a mandatory time limit for asserting a direct claim.
In one sense, General Statutes § 52-102b(d) is directory. In providing that "the plaintiff may, within sixty days of the return date of the apportionment complaint . . . assert [a direct] claim against the apportionment defendant," (emphasis supplied) it 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." Demers v. Demers, Superior Court, judicial district of Waterbury, Docket No. CV 01 0166813 (June 8, 2004, Matasavage, J.).
If a plaintiff initially chose not to directly sue the party whom the defendant served with an apportionment complaint pursuant to General Statutes § 52-102b(a), the only mechanism by which a plaintiff can later bring a direct claim is under § 52-102b(d). Means filed a timely objection to Ortiz's revised complaint which sought to assert a direct claim against her. See Carpenter v. Law Offices of Dressier Associates, LLC., 85 Conn.App. 655, 661-62, 858 A.2d 820, cert. denied, 272 Conn. 909, 913, 613 A.2d 700 (2004). Ortiz could not assert a direct claim against Means more than sixty days after the return date of the apportionment complaint. The revised complaint was filed 198 days after the return date. Accordingly, the objection to the revised complaint is sustained.
In light of this conclusion, it is not necessary to rule on the alternative ground in support of Means' objection to the revised complaint in which she claims that Ortiz had to serve the revised complaint on her. However, where an apportionment defendant has already filed an appearance in a case it has been held that service is not required to assert a claim under General Statutes § 52-102b(d). Dutch v. Mashtare, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 08-5015796 (April 14, 2009, Gilardi, J.).