Opinion
No. CV 09-6000615-S
November 16, 2010
MEMORANDUM OF DECISION RE MOTION TO DISMISS (#115)
The present matter began on April 29, 2009, when the plaintiff, Susan Hopponen, filed a two-count complaint against All Season Party Rentals, LLC (All Season). The plaintiff alleges the following facts. On or about May 10, 2007, the plaintiff attended a meeting at Waterworks, Inc., her place of employment. Waterworks leased chairs for that meeting from All Season. While attending the meeting, the chair upon which the plaintiff was sitting cracked and broke, causing the plaintiff to fall and sustain injuries. Count one of both the plaintiff's original complaint and her amended complaint sound in negligence against All Season, and count two is a products liability claim that is also brought against All Season. On September 14, 2009, All Season filed a motion to implead a third-party defendant, Commercial Seating Products, Inc. (Commercial Seating), as well as a complaint against Commercial Seating for contribution. Before the court granted All Season's motion to implead on October 5, 2009, the plaintiff filed an amended complaint on September 24, 2009, in which she added a third count to her complaint against Commercial Seating that sounds in products liability. Commercial Seating filed an appearance on November 24, 2009.
On January 21, 2010, Commercial Seating filed a motion to dismiss the plaintiff's claim against it in count three, to which the plaintiff filed an objection on January 25, 2010. This matter was heard at the November 8, 2010 short calendar.
DISCUSSION
"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Caruso v. Bridgeport, 285 Conn. 618, 627, 941 A.2d 266 (2008). "It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Massey v. Branford, 119 Conn.App. 453, 458, 988 A.2d 371, cert. denied, 295 Conn. 921, 991 A.2d 565 (2010).
In its motion to dismiss, Commercial Seating asserts that because the plaintiff failed to file her complaint against it within twenty days after its appearance, as mandated by General Statutes § 52-102a, the court is deprived of subject matter jurisdiction over the claim relating to it. Specifically, Commercial Seating argues that because the plaintiff asserted claims against it more than twenty days before it appeared in the present matter, it has failed to comply with § 52-102a. Commercial Seating cites Bantam Fire Co. v. Cooper, Superior Court, judicial district of Litchfield, Docket No. CV 97 074209 (February 23, 1998, Pickett, J.T.R.) ( 21 Conn. L. Rptr. 319), and Branigan v. Kulak, Superior Court, judicial district of New Britain, Docket No. CV 92 0449029 (September 18, 1992, Goldberg, J.) [ 7 Conn. L. Rptr. 371], in support of its motion. The plaintiff objects to Commercial Seating's motion to dismiss on the ground that § 52-102a does not mandate dismissal of a claim as a result of a plaintiff's failure to comply with the twenty-day time limit. The plaintiff also argues that the plain language of § 52-102a supports its position that asserting a claim against Commercial Seating prior to its appearance "does not run afoul of the statute." The plaintiff cites Tarzia v. Great Atlantic Pacific Tea Co., 52 Conn.App. 136, 141-44, 727 A.2d 219 (1999), Young v. Young, 249 Conn. 482, 490, 733 A.2d 835 (1999), appeal dismissed, 254 Conn. 786, 759 A.2d 502 (2000), and Cabrera v. Sellew, Superior Court, judicial district of New London, Docket No. CV 03 0567831 (January 3, 2005, Jones, J.), in support of her arguments.
General Statutes § 52-102a(c) provides: "The plaintiff, within twenty days after the third-party defendant appears in the action, may assert any claim against the third-party defendant arising out of the transaction or occurrence that is the subject matter of the original complaint, and the third-party defendant, as against such claim, shall have available to him all remedies available to an original defendant, including the right to assert set-offs or counterclaims against the plaintiff." (Emphasis added.) See also Practice Book § 10-11(b). "Statutes must be interpreted to give meaning to their plain language . . ." (Internal quotation marks omitted.) Friends of Animals, Inc. v. United Illuminating Co., 124 Conn.App. 823, 854 (2010). "The word `within' is of controlling importance. It means `not longer in time than' . . . `not later than.'" (Internal quotation marks omitted.) Lamberti v. Stamford, 131 Conn. 396, 398, 40 A.2d 190 (1944). Applying the Connecticut Supreme Court's definition of "within" to § 52-102a(c), the first sentence of the statute provides in relevant part: "The plaintiff, [not longer in time than or not later than] twenty days after the third-party defendant appears in the action, may assert any claim against the third-party defendant . . ."
Once again, the plaintiff filed her amended complaint naming Commercial Seating on September 24, 2009, and she sent a copy of this amended complaint to Commercial Seating after All Season had filed its motion to implead on September 14, 2009, but before Commercial Seating was served with the third-party complaint on October 21, 2009. Although this situation is unusual in that the plaintiff filed her amended complaint, including a claim against Commercial Seating, before Commercial Seating was impleaded into the case and before Commercial Seating appeared on November 24, 2009, the court concludes that under the Connecticut Supreme Court's definition of "within," § 52-102a(c) appears to set an outer later limit on a plaintiff's ability to assert a claim against a third-party defendant, not a prior earlier limit. Moreover, in Tarzia, the Connecticut Appellate Court concluded that § 52-102a(c) should not be strictly enforced, in part because "of the facts of [the] case" and in part because "[t]here are no cases of which [the court was] aware that decide whether the twenty day time limit should be strictly enforced." Tarzia v. Great Atlantic Pacific Tea Co., supra, 52 Conn.App. 136, 143. Likewise, based on the facts of the present matter and the plain language of § 52-102a(c), and while indulging a presumption in favor of jurisdiction, the court concludes that filing an amended complaint in which the third-party defendant is named, before the third party defendant appears in the case, is sufficient to comply with § 52-102a(c). As a result, Commercial Seating's motion to dismiss is denied.