Opinion
CV166033541S
11-22-2016
Milady Rivera et al. v. Andrew Schwager
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO STRIKE #110
Peter E. Wiese, J.
I
Procedural History
On June 1, 2016, the plaintiffs, Milady Rivera and Bryan Y. Rivera, filed a six-count complaint, dated May 25, 2016, against the defendants, Andrew Schwager, Mac Motors, Inc. (Mac Motors), Alexander M. Acosta, and Marilyn Rodriguez. Counts one and two of the complaint concern a motor vehicle accident that occurred on August 14, 2015. The first count is a negligence claim against Schwager, who operated the vehicle that allegedly rear ended Milady Rivera's vehicle while her vehicle was stopped at a red traffic light. Milady Rivera alleges that Schwager's negligence caused her to suffer various personal injuries. The second count is a negligence claim against Mac Motors, the owner of the vehicle that Schwager operated at the time of the August 14, 2015 accident.
This defendant is identified in the summons as Mac Motors, Inc., d.b.a. Hartford Toyota Superstore, c/o Corporation Service Company, Agent for Service, 50 Weston Street, Hartford, CT 06120.
Counts three through six are also negligence claims, and they concern a second motor vehicle accident that occurred on October 10, 2015, nearly two months after the first accident. Counts three and five of the complaint are against Acosta, who operated the motor vehicle that allegedly rear ended Milady Rivera's motor vehicle while her vehicle was slowing down due to traffic. Count three is brought for injuries sustained by Milady Rivera, and count five is brought for injuries sustained by Bryan Rivera, who was a passenger in the motor vehicle operated by Milady Rivera. Counts four and six of the complaint are against Rodriguez, the owner of the motor vehicle operated by Acosta at the time of the accident. Count four is brought for injuries sustained by Milady Rivera, and count six is brought for injuries sustained by Bryan Rivera.
On July 27, 2016, Schwager and Mac Motors moved to strike counts three through six of the complaint. Prior to the filing of the motion to strike, however, the plaintiffs withdrew the claims brought by Bryan Rivera, which includes counts five and six. On September 8, 2016, the plaintiff filed an objection to the motion strike. On September 13, 2016, Schwager and Mac Motors filed a reply to the objection. The matter was heard at short calendar on September 26, 2016.
On July 7, 2016, Bryan Rivera filed a complete withdrawal of the action. Subsequently, on July 8, 2016, the plaintiffs filed a motion to open judgment, claiming that they erroneously withdrew the entire action, and that the action should be withdrawn only as to the claims brought by Bryan Rivera. On July 25, 2016, the court (Wiese, J.) granted the plaintiffs' motion to open judgment.
The objection was filed by Milady Rivera, who, as the only remaining plaintiff, will be referred to as " the plaintiff."
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). " In ruling on a motion to strike the trial court is limited to considering the grounds specified in the motion." Meredith v. Police Commission, 182 Conn. 138, 140, 438 A.2d 27 (1980). " 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." (Internal quotation marks omitted.) Rizzuto v. Davidson Ladders, Inc., 280 Conn. 225, 256 n.20, 905 A.2d 1165 (2006), quoting Practice Book § 10-39(a).
" [A] motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court . . . [The court] construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . Moreover, [the court notes] that [w]hat is necessarily implied [in an allegation] need not be expressly alleged . . . It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted . . . Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Coppola Construction Co. v. Hoffman Enterprises Ltd. Partnership, 309 Conn. 342, 350, 71 A.3d 480 (2013).
Schwager and Mac Motors move to strike counts three through six of the complaint (claims arising from the second accident) on the ground that the claims are improperly joined with the claims arising from the accident that forms the basis of count one and count two (claims arising from the first accident) because the claims arising from the first and second accident involved different motor vehicle accidents and different parties. More specifically, Schwager and Mac Motors contend that the claims arising from both accidents do not " affect all the parties to the action, " as required by Practice Book § 10-21 and General Statutes § 52-97, because all the plaintiffs and defendants are not common to all the claims.
The plaintiff counters, in part, that the " shall affect all the parties" language has a broader meaning, and that all the parties are connected because they have an interest in the outcome, specifically as it pertains to apportioning damages. The plaintiff further argues, in relevant part, that joinder should be permitted in order to promote judicial economy and avoid inconsistent verdicts.
In Connecticut, two or more causes of action may be joined in a single complaint pursuant to General Statutes § 52-97 and Practice Book § 10-21, which contain virtually identical language. General Statutes § 52-97 states: " In 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 (1) upon contract, express or implied, or (2) for injuries, with or without force, to person and property, or either, including a conversion of property to the defendant's use, or (3) for injuries to character, or (4) upon claims to recover real property, with or without damages for the withholding thereof, and the rents and profits of the same, or (5) upon claims to recover personal property specifically, with or without damages for the withholding thereof, or (6) claims arising by virtue of a contract or by operation of law in favor of or against a party in some representative or fiduciary capacity, 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.) Id.
Based upon the language in the relevant sections of the General Statutes and Practice Book, " courts . . . are to consider first whether the present circumstances fall under one of the seven categories enumerated by [General Statutes § 52-97 and] Practice Book § 10-21, and second, whether the causes of action affect all the parties to the action. Finally, courts often focus on the 'if it appears to the [court] that they cannot all be conveniently heard together' language . . . and decide whether to permit joinder based on the equitable considerations in the situation rather than on a strict application of [§ 52-97 and] § 10-21." 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, 606, ).
The second requirement will be addressed first because, in the present case, Schwager and Mac Motors move to strike on the ground that the claims arising from both accidents do not affect all the parties to the action. As recognized by these defendants, there is a split of authority as to the meaning of " shall affect all the parties to the action." A number of courts have adopted a strict interpretation of the language, and have held that there must be commonality between the parties as to all the claims. See, e.g., Ocasio v. Buchanan, Superior Court, judicial district of Hartford, Docket No. CV-15-6059597-S (January 13, 2016, Dubay, J.) (61 Conn.L.Rptr. 624, ); Cianciolo v. Musumano, Superior Court, judicial district of Waterbury, Docket No. CV-08-5008286-S, (August 12, 2008, Alvord, J.); Byrnes v. Matakevich, Superior Court, judicial district of New Haven, Docket No. CV-12-6026476-S, (March 7, 2012, Fischer, J.); 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, ); and 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, ). Thus, under this strict interpretation, claims involving separate automobile accidents and different parties may not be joined even where the separate accidents result in identical or similar injuries. See Ocasio v. Buchanan, supra, 61 Conn.L.Rptr. 624, ; Byrnes v. Matakevich, supra, Superior Court, Docket No. CV-12-6026476-S, Green v. Blanchard, supra, 44 Conn.L.Rptr. 54, ; and Fierro v. Bauder, supra, 36 Conn.L.Rptr. 399, .
Courts in states that have similar joinder rules to Connecticut have generally adopted a strict interpretation of " affect all the parties to the action." See, e.g., Fitzwilliams v. O'Shaughnessy, 40 Wis.2d 123, 125, 161 N.W.2d 242 (1968) (finding misjoinder where the complaint sought damages for alleged injuries resulting from two different automobile accidents occurring in same county, on same highway and on same day, because the two separate causes of action did not affect all defendants).
Other courts have concluded that " shall affect all the parties" does not require that all parties must be common to all the causes of action, but rather that " affect" only requires joined parties to have an interest in the outcome of each claim. See, e.g., Johnson v. Tavares, Superior Court, judicial district of Waterbury, Docket No. CV-16-6030304-S, (September 16, 2016, Brazzel-Massaro, J.); 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, ); Gonzalez v. Lu, Superior Court, judicial district of Windham, Docket No. CV-14-6008608-S, (November 24, 2014, Boland, J.); and Mills v. Rita H. Carter Revocable Trust, supra, 55 Conn.L.Rptr. 605, ; Termini v. Taylor, Superior Court, judicial district of New Haven at Meriden, Docket No. CV-05-5000171-S (November 28, 2005, Taylor, J.) (40 Conn.L.Rptr. 424, ). Under this broad interpretation, claims involving separate automobile accidents and different parties may be joined where the separate accidents result in the same injuries. See Johnson v. Tavares, supra, Superior Court, Docket No. CV-16-6030304-S, ; Swaney v. Estrella, supra, 61 Conn.L.Rptr. 175, ; and Gonzalez v. Lu, supra, Superior Court, Docket No. CV-14-6008608-S. This is because " each party to [the] action is affected by each claim in the fundamental sense that, there being injuries of the same nature (with other injuries) to both plaintiffs . . . the extent of negligence of each party claimed to have contributed to the plaintiff's injuries is determined by the trier of fact." Swaney v. Estrella, supra, 61 Conn.L.Rptr. 176, .
This court finds the strict interpretation of the " shall affect all the parties" language to be more persuasive, and the court agrees that, " [i]n 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 . . ." 1 E. Stephenson, Connecticut Civil Procedure (3d Ed. 1997) § 47(c), p. 147. Thus, under the present facts, the claims involving the second accident should not be joined with the other claims because the claims in the second accident involve a different accident, on a different day, with different defendants. In other words, the claims should not be joined because the various claims in the complaint do not affect all the parties to action, as all the plaintiffs and all the defendants are not common to all the claims.
The plaintiff argues, in part, that Card v. State, 57 Conn.App. 134, 747 A.2d 32 (2000), is dispositive. The plaintiff contends that Card suggests that claims must be joined where a jury is faced with apportioning damages for separate accidents involving the same injuries to the same plaintiff because separate causes of action could leave the plaintiff without remedy.
It should be noted that the plaintiff also argues that joining the claims would promote judicial economy and consistent verdicts. Despite these public policy concerns, however, the court " must follow the text." Green v. Blanchard, supra, 44 Conn.L.Rptr. 55, . Even though " [t]he court has very broad inherent authority to consolidate cases for trial, " it is well established that " [t]he joinder rules are more strict." Id., 56, . " 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. Such consolidation is also an inherent power of the court. Conversely, the court has express power under the rules to order separate trial of actions properly joined in one complaint." (Citations omitted; footnotes omitted.) 1 E. Stephenson, Connecticut Civil Procedure, supra, § 47 (c), p. 148.
The court does not need to address whether the present circumstances fall under one of the seven categories enumerated by General Statutes § 52-97 and Practice Book § 10-21 because the motion to strike may be granted on the ground that the various claims in the complaint do not affect all the parties to action. In addition, Schwager and Mac Motors only addressed the " shall affect all the parties to the action" language in their motion to strike and memorandum.
III
Conclusion
For the foregoing reasons, the court grants the motion to strike counts three and four of the complaint.
As discussed, counts five and six have already been withdrawn by the plaintiffs.
SO ORDERED.
The Appellate Court's decision in Card is distinguishable. Card did not address the issue of whether two personal injury claims may be joined in one action. Instead, Card addressed how to apportion damages between two or more separate accidents, especially where the jury is unable to make even a rough apportionment of damages. Id., 144-45. The holding in Card is also distinguishable because, in Card, two separate cases were consolidated; id., 136-37; and the joining of claims in a single complaint, pursuant to General Statutes § 52-97 and Practice Book § 10-21, was not at issue.