Opinion
HHDCV166069607S
07-03-2018
TRAVELERS PROPERTY AND CASUALTY COMPANY OF AMERICA as Subrogee FOR MOPS-A-LOT, LLC et al. v. R. ARGENTO & SONS, INC. dba Argento & Sons
UNPUBLISHED OPINION
OPINION
Cesar A. Noble, J.
This matter comes before the court on the motion of the intervening plaintiff, Manuel Moreira, to strike the November 18, 2016 first, second and fourth special defenses to the intervening complaint by the defendant, R. Argento & Sons, Inc. d/b/a Argento & Sons (Argento). Subsequent to the filing of the motion Argento withdrew the fourth special defense. For the following reasons the first and second special defenses are stricken.
This matter was commenced by The Travelers Property and Casualty Company of America as Subrogee for Mops-A-Lot, LLC, (Travelers) by complaint dated June 15, 2016.
Travelers alleged in its complaint that it provided workers’ compensation insurance to Mops-A-Lot, LLC, who employed Moreira. Moreira was injured while in the course of his employment with Mops-A-Lot, LLC as a result of his ejection from, and being run over by, a lawnmower causing him to suffer injuries as a result of which Travelers paid workers’ compensation benefits. Travelers further alleged that Moreira’s injuries were caused by the negligence of Argento which maintained and repaired the mower. Thereafter by complaint dated September 14, 2016, Moreira intervened in this action, seeking to recover for his personal injuries on identical theories of negligence.
Argento filed an answer and special defense to the intervening complaint on November 18, 2018. The first special defense provides that "If Manuel Moreira was injured and suffered damages as alleged, then such injury was not caused by the defendant or by any person for whose conduct the defendant is legally responsible." Argento asserts in its second special defense that "if Manuel Moreira suffered any injury or damage, which the defendant specifically denies, such damage was caused by the intervening and superseding acts or omissions of parties other than the defendant, which said defendant could not have reasonably foreseen." Moreira has moved to strike both.
Practice Book § 10-39(a)(5) provides that a motion to strike is the proper pleading to contest the legal sufficiency of a special defense. "The fundamental purpose of a special defense, like other pleadings, is to apprise the court and opposing counsel of the issues to be tried, so that basic issues are not concealed until the trial is underway ... Thus, if a party seeks to introduce evidence under a denial which is consistent with a prima facie case, but nevertheless would tend to destroy the cause of action, the new matter must be affirmatively pleaded as a special defense." (Citations omitted, internal quotations marks omitted.) Bruno v. Whipple, 162 Conn.App. 186, 201, 130 A.3d 899 (2015). "It is well recognized in the State of Connecticut that legal conclusions may not be asserted as special defenses, and special defenses which fail to allege supporting facts is a ground upon which said special defenses may be stricken." Mangan v. Newfield Constr., Inc., Superior Court, judicial district of Hartford, Docket No. 166067517S, 2016 WL 7974251, at *2 (December 12, 2016, Dubay, J.) See also Smith v. Jackson, Superior Court, judicial district of Waterbury, Docket No. CV-14-6024411-S (August 21, 2015, Roraback, J.) (60 Conn.L.Rptr. 864, 865). "[T]he total absence of any factual allegations specific to the dispute renders [the special defense] legally insufficient."
Argento asserts that the first special defense, which raises the lack of a causal relationship between the tortious conduct and injury, should be stricken because it not consistent with the intervening plaintiff’s prima facie case and, moreover, is legally insufficient because of the lack of a factual predicate. The court agrees. Our Appellate Court has instructed that the denial of causation, being inconsistent with the plaintiff’s allegations, need not be specially pled. Barrows v. J.C. Penney Co., 58 Conn.App. 225, 234, 753 A.2d 404 (2000). This, and lack of any factual predicate, require that the first special defense should be stricken.
The second special defense, which asserts the existence of a superseding or intervening cause of Moreira’s injuries, is legally insufficient in the view of Moreira because our Supreme Court abandoned the applicability of the doctrine in those cases in which a third party’s negligence is alleged to have intervened to cause the plaintiff’s injuries. Barry v. Quality Steel Prod., Inc., 263 Conn. 424, 436, 820 A.2d 258 (2003). While the assertion is undoubtedly true it misses the mark in the present case. The second special defense seeks to interpose as the break in the causal link between alleged negligence and injury the "intervening and superseding acts or omissions of parties other than the defendant, which said defendant could not have reasonably foreseen." It does not restrict the class of intervening acts or omissions to those that are negligent in nature. This is significant because Barry abandoned the doctrine of superseding cause only as "to subsequent negligent acts; Id. 439, n.16; but expressly left open its applicability to other types of acts. As noted by the court in Snell v. Norwalk Yellow Cab, Inc., 172 Conn.App. 38, 158 A.3d 787 (2017), unforeseeable intentional torts, acts of nature or criminal events, remain recognized as acts to which the doctrine is applicable. Construing the special defense in the manner most favorable to sustaining its legal sufficiency, as this court must; Doe v. Hartford Roman Catholic Diocesan Corp., 317 Conn. 357, 398, 119 A.3d 462 (2015); such acts fall within the ambit of conduct which continue to be subject to the doctrine’s application. On this ground, then, the motion to strike as to the second special defense fails.
Moreira, however, additionally raises the failure of the special defense to allege specific facts. Indeed, the second special defense asserts only a general legal proposition without identifying the act or conduct which constitutes the superseding act. On this basis the special defense should be stricken.
Argento claims that the motion to strike is untimely and notes that it was filed 17 months after the answer and special defense to which it is directed. Argento directs the courts’ attention to decisions of the Superior Court which disallowed motions to strike when filed well after the time limitations set out in Practice Book § § 10-8 and 10-61. See, e.g., Kuo v. MIP Lessee, LP, Superior Court, judicial district of Waterbury, Complex Litigation Docket No. X10-055001409S, 2008 WL 1800087 (March 31, 2008, Scholl, J.) , and cases compiled therein.
Practice Book § 10-8 requires the advancement of pleadings one step within each successive period of thirty days from the preceding pleading. Practice Book § 10-60 permits a pleading within the same time after an amendment.
As acknowledged by Argento the court retains discretion to overlook the delay. Indeed, while both § § 10-8 and 10-61 require the advancement of pleadings within 30 days from the preceding pleading they impose no penalty for the failure to comply. The allowance or disallowance of an untimely pleading remains within the sound discretion of the court. One of the considerations that inform the exercise of discretion is prejudice. The court notes that trial is scheduled to begin on November 6, 2018. Upon inquiry by the court at oral argument as to any prejudice it would suffer if the court allowed the motion to strike Argento noted only that its motion for permission to file summary judgment, filed February 16, 2018, was denied.
At that time the matter was scheduled for trial on April 24, 2018 although Argento’s continuance of the trial date was then pending. The court, Dubay, J., denied the motion for permission. While the court stated at oral argument that it would reconsider the denial of the motion for permission to file summary judgment it was not aware that the motion was decided by another judge. Other reasons apart from deference to another judge’s decision, militate against disturbing the denial. Foremost among them are the grounds upon which it was represented the summary judgment would be filed, to wit, the defendant did not breach a duty of care and its actions did not actually cause the plaintiff’s injury.
The court finds no prejudice to Argento by action on the motion to strike. There is no discovery or any other action of which it has been denied the benefit if the motion to strike is allowed. Furthermore, the legal issues raised by the motion may beneficially be resolved at this time rather than awaiting motions in limine at the time of trial. Therefore, the court exercises its discretion, allows the motion to strike and, for the reasons previously stated, strikes the first and second special defenses.
"Issues of negligence are ordinarily not susceptible of summary adjudication but should be resolved by trial in the ordinary manner." (Internal quotation marks omitted.) Fogarty v. Rashaw, 193 Conn. 442, 446, 476 A.2d 582 (1984). "Summary judgment procedure is especially ill-adapted to negligence cases, where ... the ultimate issue in contention involves a mixed question of fact and law, and requires the trier of fact to determine whether the standard of care was met in a specific situation ... [T]he conclusion of negligence is necessarily one of fact ..." (Citations omitted; internal quotation marks omitted.) Michaud v. Gurney, 168 Conn. 431, 434, 362 A.2d 857 (1975). Moreover, "[t]he question of proximate causation generally belongs to the trier of fact because causation is essentially a factual issue." (Internal quotation marks omitted.) McDermott v. State, 316 Conn. 601, 616, 113 A.3d 419 (2015). Unlike summary judgment the motion to strike presently before the court requires only a review of the legal sufficiency of two pleadings and is easily addressed. The court declines to revisit the denial of the motion for permission to file summary judgment.