Opinion
No. CV 03-0284811-S
January 26, 2004
MEMORANDUM OF DECISION RE MOTION TO STRIKE #107
Defendants Ryan Bauder and Petroleum Services, Inc., have moved to strike Count One of the plaintiff's two-count complaint, for the reason that count one has been improperly joined with an entirely separate and distinct claim and cause of action against defendants Clifford Leon Wilde and Christine M. Durant. Accompanying the motion to strike is a memorandum of law. On September 19, 2003, the Plaintiff filed in opposition a memorandum of law. A reply memorandum in support of the motion was filed on September 22, 2003.
In the complaint dated June 9, 2003, the plaintiff alleges in the first count that he suffered injuries as a result of an accident, which occurred on June 15, 2001, in Hartford, Connecticut. The plaintiff further alleges that he was injured when his motorcycle was struck by a vehicle owned by Petroleum Services, Inc. and operated by Bauder.
In the second count, the plaintiff claims he suffered injuries as a result of an accident which occurred on January 17, 2002, in Wallingford, Connecticut. Therein, the plaintiff claims he was injured and that his pre-existing injuries were aggravated, when the vehicle in which he was a passenger was struck by a vehicle owned by Durant and operated by Wilde.
There is no allegation in the second count that Bauder or Petroleum Services, Inc., were involved in the second accident in any way; nor is there any allegation in the first count that Wilde and Durant were involved in the first accident in any way. Each count sets forth separate and a distinct group of facts against separate and distinct defendants.
"Whenever any party wishes to contest . . . the joining of two or more causes of action which cannot properly be united in one complaint, whether the same be stated in one or more counts . . . that party may do so by filing a motion to strike the contested pleading or part thereof." Practice Book § 10-39. In deciding a motion to strike, the court "take[s] the facts to be those alleged in the complaint . . . and construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Vacco v. Microsoft Corp., 260 Conn. 59, 65, 793 A.2d 1048 (2002). Practice Book § 10-21 provides, "in any civil action the plaintiff may include in the complaint both legal and equitable rights and causes of action . . . but if several causes of action are united in the same complaint, they shall all be brought to recover, either (1) upon contract, express or implied, or (2) for injuries to person and property . . . or (7) upon claims, whether in contract or tort or both, arising out of the same transaction or transactions connected with the same subject of action." See also General Statutes § 52-97.
In this case, the plaintiff has united in the same complaint a cause of action for injuries to his person against one set of defendants with a different cause of action for injuries to his person against a different set of defendants. The accidents in which the plaintiff was injured were not the same transaction or transactions connected with the same subject of action. Both counts and both causes of action, however are brought to recover for injuries to person and thus fall within the same category. Both counts state causes of action to recover for "(2) injuries . . . to person." For that reason there is no misjoinder. But see Matyas v. Eddy, 25 Conn. Sup. 403, 405, 58 A.2d 389 (1964) (although the causes of action arose out of two counts of malpractice as the result of two unrelated operations to the same plaintiff by the same defendant, the court determined, nonetheless, that there was a misjoinder of the causes of action).
In addition, however, to the requirement that all causes of action must fall within a single one of the categories listed in § 10-21, the rule of joinder of actions requires that all plaintiffs and all defendants must be common to all claims. E. Stephenson, Connecticut Civil Procedure, Section 47(c) (3d. Edition 1997). "The several causes of action so united shall all belong to one of the classes, and . . . shall affect all the parties to the action." (Emphasis added.) Practice Book § 10-21. It should be noted further that Practice Book § 9-14 provides, "[p]ersons may be joined as defendants against whom the right to relief is alleged to exist in the alternative, although a right to relief against one may be inconsistent with a right to relief against the other." That provision, however, does not apply in the present case where the claim for relief does not arise from a single transaction or occurrence. "Where the facts forming the basis upon which the plaintiff claims relief constitute a single transaction or occurrence, he may sue in one action two or more defendants against whom he claims relief, and it does not matter that they may be liable concurrently, successively or in the alternative, or that the relief against each has a different legal basis." Viets v. Hartford, 134 Conn. 428, 434, 58 A.2d 389 (1948).
There is no allegation in the second count that Bauder or Petroleum Services, Inc., were involved in the second accident; nor is there any allegation in the first count that Wilde and Durant were involved in the first accident. Each count sets forth separate and distinct groups of facts against separate and distinct defendants. Because the facts forming the basis upon which the plaintiff claims relief in each count do not constitute a single transaction or occurrence, he may not sue both sets of defendants in this action.
Bauder's and Petroleum Services Inc.'s, motion to strike is granted.
BY THE COURT
Tanzer, J.