Opinion
HHDCV156059597S
01-13-2016
Hector Ocasio v. Stuart Buchanan et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Kevin G. Dubay, J.
FACTS AND PROCEDURAL HISTORY
The plaintiff, Hector Ocasio, commenced this negligence action by service of process on May 1, 2015. The plaintiff's three-count complaint alleges negligence and carelessness against various defendants due to the defendants' allegedly negligent operation of their motor vehicles.
State Marshal Peter J. Perone's return of service (#101) indicates that he served legal process on each of the named defendants on different dates. As indicated in Perone's return of service, he served legal process on Stuart and Vangella Buchanan on April 26, 2015, at their usual place of abode. He also served legal process on Mariana Ocasio on May 1, 2015, at her usual place of abode. Finally, he made constructive service on both John and Paul Galuska on May 11, 2015, by leaving a verified true and attested copy of the writ, summons, complaint, and statement of amount in demand with the Commissioner of Motor Vehicles for the state of Connecticut. Because Mariana Ocasio filed the present motion to strike, which solely addresses the count alleged against her, this memorandum will refer to the date that she was served legal process as the time when the plaintiff commenced this action.
As alleged in count one, on or about May 13, 2013, the plaintiff was operating his motor vehicle on Interstate 91 in Bloomfield when the defendant, Stuart Buchanan (Stuart), operated a motor vehicle into the rear of the plaintiff's motor vehicle, causing the plaintiff to suffer injuries to his cervical, thoracic, lumbar spine and right lumbar neuritis. The plaintiff alleges that Vangella Buchanan owned the vehicle driven by Stuart. In count two, the plaintiff alleges that, on or about March 3, 2014, the plaintiff was operating his motor vehicle on Flatbush Avenue in Hartford when the defendant, John Galuska (John), operated a motor vehicle into the rear of the plaintiff's motor vehicle, causing the plaintiff to suffer injuries to his cervical, thoracic, and lumbar spine, his chest, and/or an aggravation of a preexisting condition to his cervical, thoracic, and lumbar spine. The plaintiff alleges that Paul Galuska owned the vehicle driven by John. Finally, in count three, the plaintiff alleges that, on or about June 22, 2014, he was a passenger in a motor vehicle operated by the defendant, Mariana Ocasio. While the defendant was operating her motor vehicle at the intersection of Ridgewood Road and New Britain Avenue in West Hartford, the defendant was involved in a collision with a motor vehicle operated by Bruce Wazorko. The plaintiff alleges that this collision caused him to suffer injuries, namely, an exacerbation of a cervical, thoracic, and lumbar sprain/strain to his spine.
Mariana Ocasio filed the motion to strike that is presently before the court and only moves to strike count three, which is the count alleged against her. Thus, for purposes of this memorandum, any further references to the defendant will be in reference to Mariana Ocasio.
On August 25, 2015, the defendant filed a motion to strike count three of the plaintiff's complaint. On September 8, 2015, the plaintiff filed an objection to the defendant's motion to strike, and the defendant filed a reply on October 9, 2015. This court heard oral argument on this matter on the October 13, 2015 short calendar.
II
DISCUSSION
" The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). " A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court." (Internal quotation marks omitted.) Ventres v. Goodspeed Airport, LLC, 275 Conn. 105, 154, 881 A.2d 937 (2005). Practice Book § 10-39(a) provides in relevant part that " [a] motion to strike shall be used whenever any party wishes to contest . . . (4) 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 . . ." See also Rizzuto v. Davidson Ladders, Inc., 280 Conn. 225, 256 n.20, 905 A.2d 1165 (2006) (" 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.") " The exclusive remedy for misjoinder of parties is by motion to strike." (Internal quotation marks omitted.) McCart v. Shelton, 81 Conn.App. 58, 61, 837 A.2d 872 (2004); Practice Book § 11-3.
The defendant argues in her memorandum of law that count three of the plaintiff's complaint should be stricken based on the ground that it was improperly joined pursuant to Practice Book § 10-21(7). Specifically, the defendant argues that the plaintiff's negligence claims are against different defendants, involving distinct motor vehicle accidents that occurred on three different dates. In response, the plaintiff argues that Connecticut favors trying successive accidents that result in overlapping injuries in one single action. Specifically, the plaintiff claims (I) that Card v. State, 57 Conn.App. 134, 747 A.2d 32 (2000), permits the plaintiff to bring these personal injury claims in a single complaint, (ii) that subsection (2) of both Practice Book § 10-21 and General Statutes § 52-97 permit the joinder of his personal injury claims, and (iii) that joinder of his personal injury claims would be convenient and in the interests of judicial economy.
With minor differences of no significance, both Practice Book § 10-21 and General Statutes § 52-97 govern the joining of several causes of action in a single complaint. They are substantively identical, providing in relevant part that " [i]n any civil action the plaintiff may include in his complaint both legal and equitable rights and causes of action, and demand both legal and equitable remedies; but, if several causes of action are united in the same complaint, they shall all be brought to recover, either . . . (2) for injuries, with or without force, to person and property, or either, including a conversion of property to the defendant's use . . . 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. The several causes of action so united shall all belong to one of these classes, and, except in an action for the foreclosure of a mortgage or lien, shall affect all the parties to the action, and not require different places of trial, and shall be separately stated; and, in any case in which several causes of action are joined in the same complaint, or as matter of counterclaim or set-off in the answer, if it appears to the court that they cannot all be conveniently heard together, the court may order a separate trial of any such cause of action or may direct that any one or more of them be expunged from the complaint or answer." (Emphasis added.) See also Practice Book § 10-22 (defining " transactions connected with the same subject of action within the meaning of subdivision [7] of [Practice Book § ]10-21"). " Practice Book § 10-21 . . . spells out when certain separate causes of action may be joined in one complaint. It does not purport to mandate when they must be so joined." Danbury v. Dana Investment Corp., 249 Conn. 1, 26, 730 A.2d 1128 (1999).
Although the defendant specifically moves to strike count three of the complaint on the basis of Practice Book § 10-21(7), courts faced with the precise issue before the court have not distinguished Practice Book § 10-21 from General Statutes § § 52-97. See, e.g., Gonzalez v. Lu, Superior Court, judicial district of Windham, Docket No. CV-14-6008608, (November 24, 2014, Boland, J.) ; Cianciolo v. Musumano, Superior Court, judicial district of Waterbury, Docket No. CV-08-5008286-S, (August 12, 2008, Alvord, J).
Thus, a plaintiff is permitted to bring several causes of action in a single complaint if: (I) the causes of action belong to one of the classes described in General Statutes § 52-97 and Practice Book § 10-21; (ii) the causes of action affect all the parties to the action; and (iii) if the causes of action are joined, the court deems it convenient to hear the causes of action together. See General Statutes § 52-97; Practice Book § 10-21.
As reflected by the parties' positions in the present case, numerous Superior Courts have considered the issue before the court and have reached conflicting results. For example, in Crystal Mills v. Rita H. Carter Revocable Trust, Superior Court, judicial district of New London, Docket No. CV-12-6015038-S (February 19, 2013, Devine, J.) (55 Conn. L. Rptr. 605), the plaintiff alleged in counts one and two of her complaint that, on October 10, 2010, she slipped and fell due to the negligence of two defendants for failing to properly maintain the premises where she fell. She claimed injuries to her jaw, contusions and abrasions to her knees, sprains and strains to the cervical and lumbar areas of her spine, and various other injuries to her nervous system and lower extremities. The plaintiff also alleged in counts three and four that, on September 2, 2011, she was involved in a motor vehicle accident when a separate defendant struck her motor vehicle from behind while she was stopped. She claimed injuries to her neck, back, head, sprains and strains of the cervical and lumbar areas of her spine and an exacerbation of her previous conditions. Each of the defendants moved to strike the claims against them, arguing misjoinder.
Interpreting the language of Practice Book § 10-21, the court in Crystal Mills noted that each count in the plaintiff's complaint sounded in negligence and, therefore, properly fell under the heading of " injuries to person or property" pursuant to subsection (2). Moreover, " under some interpretations of the 'same subject' language of § 10-21(7), the claims may all be joined because the injuries to the plaintiff constitute the subject of the action ." (Emphasis added.) (55 Conn. L. Rptr. 605, 607, at *11) The court also analyzed the requirement under § 10-21 that " [t]he several causes of action so united . . . shall affect all the parties to the action . . ." (Emphasis added.) (55 Conn. L. Rptr. 605, 607, at *6); see also Practice Book § 10-21; General Statutes § 52-97. The court adopted a broad reading of the word " affect, " which the court found to require that " all parties have an interest in all claims." Due to the overlapping injuries alleged by the plaintiff and because " each defendant will try to claim that the other incident was the primary cause of the worst injuries, " the court opined that each defendant would be affected by the other causes of action. (55 Conn. L. Rptr. 605, 607-08, at *14). Finally, the court found that it would be convenient to hear the claims together due to the difficulty in determining damages caused by the injuries, favorably citing the ruling in Card v. State, supra, 57 Conn.App. 134. (55 Conn. L. Rptr. 605, 608, at *16).
In Card v. State, 57 Conn.App. 134, 747 A.2d 32 (2000), the Appellate Court examined the propriety of consolidating for trial three separate actions brought by the same plaintiff, alleging a variety of injuries caused in three distinct motor vehicle accidents occurring over a period of about six months. After the plaintiff settled with one driver, her expert indicated he was unable to precisely apportion those injuries among the remaining two defendants, and the trial court had instructed the jury to perform that task. Id., 139. Since the suits had initially been filed as separate actions; id., 136; no party had challenged their joinder upon a motion to strike, and thus the court had no reason to consider the precise issue of joinder. Nevertheless, some courts have found Card to be informative on the issue presently before the court in that it resulted in approval of a single jury's hearing the claims against multiple defendants notwithstanding the unique circumstances creating liability on each of their parts. E.g., Gonzalez v. Lu, Superior Court, judicial district of Windham, Docket No. CV-14-6008608, (November 24, 2014, Boland, J.); Crystal Mills v. Rita H. Carter Revocable Trust, Superior Court, judicial district of New London, Docket No. CV-12-6015038-S (February 19, 2013, Devine, J.) (55 Conn. L. Rptr. 605, 608); Termini v. Taylor, Superior Court, judicial district of New Haven, Docket No. CV-05-5000171-S (November 29, 2005, Taylor, J.) (40 Conn. L. Rptr. 424, 425).
Various courts came to a conclusion similar to the one reached in Crystal Mills v. Rita H. Carter Revocable Trust, supra, Superior Court, Docket No. CV-12-6015038-S (55 Conn. L. Rptr. 605). See, e.g., Swaney v. Estrella, Superior Court, judicial district of New London, Docket No. CV-15-6023670-S (October 27, 2015, Cole-Chu, J.) [61 Conn. L. Rptr. 175, *8] (denying motion to strike on basis of Practice Book § 10-21[7] where plaintiffs brought six-count complaint against three defendants stemming from three separate rear-end collisions, noting that " common subject" involved was injuries to one plaintiff's back and nervous system and that causes of action " affect[ed] all parties" because trier of fact would need to apportion damages pursuant to General Statutes § 52-572h[f]]; Gonzalez v. Lu, Superior Court, judicial district of Windham, Docket No. CV-14-6008608, (November 24, 2014, Boland, J.) (denying motion to strike on basis of Practice Book § 10-21[2] where plaintiff brought a two-count complaint against separate defendants for distinct motor vehicle accidents that occurred six months apart and plaintiff alleged that injuries sustained in both accidents affected same parts of her body and that second accident exacerbated those injuries); Termini v. Taylor, Superior Court, judicial district of New Haven, Docket No. CV-05-5000171-S (November 29, 2005, Taylor, J.) (40 Conn. L. Rptr. 424, 425) (denying motion to strike where plaintiff brought suit against two separate defendants in a single complaint for rear-end motor vehicle collisions that occurred on two separate occasions, citing Card v. State, supra, 57 Conn.App. 134).
By contrast, other courts have granted a defendant's motion to strike under circumstances similar to those presently before the court. For example, in Cianciolo v. Musumano, Superior Court, judicial district of Waterbury, Docket No. CV-08-5008286-S, (August 12, 2008, Alvord, J.), the court confronted the precise issue presently before this court within the context of two slip and fall incidents. In that case, the plaintiff alleged that on the same day he slipped and fell at two different locations due to the negligence of separate defendants. The plaintiff brought his claims in a single complaint, and one of the defendants moved to strike, arguing misjoinder. The court initially noted that subsection (2) of both General Statutes § 52-97 and Practice Book § 10-21 applied, but that " 'in addition to the requirement that all claims must fall within a single one of the categories listed, the rule of joinder of actions requires that all plaintiffs and all defendants must be common to all the claims and that all counts be triable at the same place under the rules as to venue.'" (Emphasis added). Id., quoting 1 E. Stephenson, Connecticut Civil Procedure (3d Ed. 1997), § 47(c), p. 147. The court found that commonality did not exist because " there are two different events with different defendants." Id. Moreover, the court discussed subsection (7) of the relevant statutory provision and rules of practice, noting that the two incidents lacked a " substantial connection" to one another and, thus, did not arise out of the same transaction or transactions connected with the same subject of action. Id.
Various other courts have agreed with the " commonality" requirement described by Judge Alvord in Gianciolo as that requirement pertains to the " shall affect all the parties to the action" language contained in both General Statutes § 52-97 and Practice Book § 10-21. See, e.g., Byrnes v. Matakevich, Superior Court, judicial district of New Haven, Docket No. CV-12-6026476-S, (March 7, 2012, Fischer, J.) (granting motion to strike where plaintiff alleged two separate motor vehicle accidents, each with their separate set of facts); Green v. Blanchard, Superior Court, judicial district of Tolland, Docket No. CV-07-5001528-S (August 21, 2007, Vacchelli, J.) (44 Conn. L. Rptr. 54, 55) (granting motion to strike where commonality did not exist in counts involving two different events with different defendants); Fierro v. Bauder, Superior Court, judicial district of New Haven at Meriden, Docket No. CV-03-0284811-S (January 26, 2004, Tanzer, J.) (36 Conn. L. Rptr. 399, 400) (granting motion to strike where each count set forth separate and distinct groups of facts against separate and distinct defendants); Thompson v. Dean, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV-00-0181527-S (June 28, 2002, Adams, J.) (granting motion to strike where slip and fall claims in plaintiff's complaint arose from two separate sets of facts and where there was no alleged relationship between defendants or that one defendant's conduct was connected to another defendant's conduct).
Although the parties disagree as to whether subsection (2) or (7) of both General Statutes § 52-97 and Practice Book § 10-21 applies to the alleged facts of this case, this court can resolve the dispute between the parties by turning to the second requirement established both by statute and our rules of practice, that is, whether the causes of action " affect all the parties to the action." Here, it is undisputed that each count in the plaintiff's complaint names a separate defendant and each count alleges negligence based upon conduct that took place on separate and distinct dates. Although this court recognizes that reasonable minds have diverged as to how the language, " shall affect all the parties to the action, " should be read, this court finds those opinions that follow Judge Alvord's interpretation as contained in 1 E. Stephenson, Connecticut Civil Procedure, (3d Ed. 1997), § 47(c), p. 147, to be more persuasive. As noted by Judge Alvord, " in addition to the requirement that all claims must fall within a single one of the categories listed, the rule of joinder of actions requires that all plaintiffs and all defendants must be common to all the claims and that all counts be triable at the same place under the rules as to venue." (Emphasis added). Cianciolo v. Musumano, supra, Superior Court, Docket No. CV-08-5008286-S, at *14. As alleged, the plaintiff here fails to meet this requirement.
Finally, this court is aware that the presiding judge has very broad inherent authority to consolidate cases for trial. Rode v. Adley Express Co., 130 Conn. 274, 277, 33 A.2d 329 (1943); Valentine v. LaBow, 95 Conn.App. 436, 453, 897 A.2d 624 (2009); see also Practice Book § 9-5. The joinder rules are more strict. " 'When separate actions do not qualify for joinder under the rule, but should be tried together, the court may, upon its own motion or that of a party, order that the actions be consolidated for trial.' 1 F. Stephenson, Connecticut Civil Procedure, (3d Ed. 1997), § 47(c), p. 147." Cianciolo v. Musumano, supra, Superior Court, Docket No. CV-08-5008286-S, at *7; Green v. Blanchard, supra, Superior Court, Docket No. CV-07-5001528-S (44 Conn. L. Rptr. 54, 56, at *8).
III
CONCLUSION
Accordingly, for the foregoing reasons, the defendant's motion to strike count three from the plaintiff's complaint is granted.
It is far from certain whether Card v. State, supra, 57 Conn.App. 134, is binding authority for purposes of the present motion to strike, as courts have recognized that the Appellate Court did not address the specific issue that is presently before this court. See, e.g., Byrnes v. Matakevich, Superior Court, judicial district of New Haven, Docket No. CV-12-6026476-S, *3 (March 7, 2012, Fischer, J.) (noting that " Card does not stand for the proposition that two separate and distinct negligence causes of action, against two separate defendants, for two separate motor vehicle accidents, can be properly presented in a single complaint"); Green v. Blanchard, Superior Court, judicial district of Tolland, Docket No. CV-07-5001528-S (August 21, 2007, Vacchelli, J.) (44 Conn. L. Rptr. 54, 56, *7) (distinguishing from Card because the Appellate Court in that case confronted a court's " very broad inherent authority to consolidate cases for trial, " while " joinder rules are more strict"). As recognized by various courts, Card is distinguishable from the issue before this court and, therefore, it is not binding authority for purposes of the present motion to strike.