Opinion
UWYCV176034182S
08-14-2018
Blanche VARDON v. The YELLOW WOOD, LLC
UNPUBLISHED OPINION
Brazzel-Massaro, J.
INTRODUCTION
The defendant, The Yellow Wood, LLC, filed a motion as third-party plaintiff to cite in J & L Medical Services as a third-party defendant in this action. The motion filed by the defendant alleges that pursuant to General Statutes § 52-102a and Practice Book § 10-11 that the court should permit the defendant to cite in the third-party defendant J & L Medical Services, LLC (J & L) on the ground that it may be liable for all or part of the plaintiff’s claims. The proposed third-party complaint alleges that J & L sold the Rollator to the plaintiff but never instructed or warned the plaintiff regarding the proper use, improper use and/or misuse of the Rollator. The proposed third-party complaint further alleges that J & L had exclusive control over the situation that the plaintiff claims caused her damages and losses. The defendant alleges that J & L is responsible for any injuries or damages sustained by the plaintiff, and that the defendant is entitled to common law indemnification for any amount which it may become obligated to pay as a result of any judgment entered against it in this action. The plaintiff filed an objection to the motion arguing that it sounds in apportionment, not indemnification, and should have been brought pursuant to General Statutes § 52-102b. The plaintiff further argues that, under the statute, the defendant’s motion is untimely because an apportionment complaint must be served within 120 days of the return date specified in the plaintiff’s original complaint, which has passed. The defendant filed a reply to the plaintiff’s objection on May 30, 2018, to which the plaintiff filed a sur-reply on June 1, 2018.
The matter was heard on the July 9, 2018 short calendar.
FACTUAL BACKGROUND
On March 27, 2017, the plaintiff, Blanche Vardon, filed a one-count complaint against the defendant, the Yellow Wood, LLC, seeking damages for injuries she allegedly suffered as a result of a fall on the defendant’s property. The plaintiff alleges that, on or about April 22, 2015, she was sitting on the seat of her Rollator Walker and attempting to use the walkway on the defendant’s property when, due to the unsafe, dangerous, defective and hazardous condition of the walkway, the Rollator wheels became stuck, causing the plaintiff to fall to the ground and sustain injuries.
DISCUSSION
The plaintiff asserts that the proposed third-party complaint sounds in apportionment, not indemnification, and is untimely under General Statutes § 52-102b, which requires an apportionment complaint be served within 120 days of the return date specified in the plaintiff’s original complaint. "An apportionment complaint avers liability by the third-party defendant to the plaintiff in the original action." Gordon v. Ryder Truck Rental, Inc., Superior Court, judicial district of Fairfield, Docket No. CV 08-5017943-S (January 11, 2001, Dooley, J.). "[A] party that is cited in for apportionment is one who is or may be liable to the plaintiff ." (Emphasis in original.) Walsh v. South Central Connecticut Regional Water Authority, Superior Court, judicial district of New Haven, Docket No. CV-362945-S (September 8, 1995, Fracasse, J.) . An apportionment action is brought pursuant to General Statutes § 52-102b, which provides in relevant part that "(a) A defendant in any civil action to which section 52-572h applies may serve a writ, summons and complaint upon a person not a party to the action who is or may be liable pursuant to said section for a proportionate share of the plaintiff’s damages in which case the demand for relief shall seek an apportionment of liability."
In contrast, "[i]ndemnification is a claim for reimbursement in full from one on whom primary liability is claimed to rest ... A party may seek indemnification by way of impleading a third person pursuant to [General Statutes] § 52-102a." (Citation omitted.) Groher v. Zwerling, Superior Court, judicial district of Hartford, Docket No. CV 361694-S (April 3, 1991, Clark, J.). "A party that is impleaded for indemnification is one that is or may be liable to the defendant for all or part of the plaintiff’s claim against him." (Emphasis in original.) Walsh v. South Central Connecticut Regional Water Authority, supra, Superior Court, Docket N. CV-362945-S. See Gordon v. Ryder Truck Rental, Inc., supra, Superior Court, Docket No. CV 08-5017943-S ("[a] third-party complaint avers liability by the third-party defendant to the third-party plaintiff"). "Ordinarily, there is no right of indemnity or contribution between joint tort-feasors." Kaplan v. Merberg Corp., 152 Conn. 405, 412, 207 A.2d 732 (1965). "One exception to this rule exists in tort actions involving allegations of active passive negligence." Groher v. Zwerling, supra, see Barberi v. Petrol Plus of Naugatuck, Inc., 216 Conn. 65, 74, 579 A.2d 26 (1990). To plead active/passive negligence, the third-party complaint must allege four separate elements: "(1) that the other tortfeasor was negligent; (2) that his negligence, rather than the [third-party] plaintiff’s was the direct, immediate cause of the accident and injuries; (3) that he was in control of the situation to the exclusion of the [third-party] plaintiff, and (4) that the [third-party] plaintiff did not know of such negligence, had no reason to anticipate it, and could reasonably rely on the other tortfeasor not to be negligent." (Internal quotation marks omitted.) Barberi v. Petrol Plus of Naugatuck, Inc., supra .
General Statutes § 52-102a provides that "[a] defendant in any civil action may move the court for permission as a third-party plaintiff to serve a writ, summons and complaint upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff’s claim against him."
Here, the proposed third-party complaint alleges that J & L is liable for any injuries or damages sustained by the plaintiff based on its negligence and carelessness in failing to instruct and warn the plaintiff regarding the proper use, improper use and/or misuse of the Rollator. The proposed complaint further alleges that J & L had exclusive control over the situation that allegedly caused the plaintiff’s injuries and losses, the defendant had no knowledge of any negligence or carelessness on the part of J & L, and the defendant had no reason to anticipate negligence or carelessness on the part of J & L. The defendant alleges that it is entitled to common-law indemnification from J & L for any amount which it may become obligated to pay as a result of any judgment which may be entered against it.
Notably missing from the proposed third-party complaint is an explicit allegation that J & L is or may be liable to the defendant for all or part of the plaintiff’s claim against the defendant. See Commisssioner v. Lake Phipps Land Owners Corp., 3 Conn.App. 100, 102, 485 A.2d 580 (1985) ("[a]s a fundamental and threshold requirement, a third-party plaintiff must allege that the third-party defendant is or may be liable to the third-party plaintiff for all or part of the plaintiff’s claim against him"). Nevertheless, this court is not confined to a hyper-legalistic reading of the proposed third-party complaint because "[w]hat is necessarily implied need not be expressly alleged." (Internal quotation marks omitted.) Clohessy v. Bachelor, 237 Conn. 31, 33 n.4, 675 A.2d 852 (1996). Examining the entire proposed third-party complaint, this court concludes that it seeks to shift the impact of liability from the defendant, which claims to be the passive tortfeasor, to J & L, which the defendant claims is the active tortfeasor. Accordingly, this court find that the proposed third-party complaint states a cause of action for common-law indemnification under § 52-102b.
The court rejects the plaintiff’s argument that the proposed third-party complaint states an apportionment claim because there is no allegation of a duty running between the defendant and J & L. "[A] third-party plaintiff, outside the context of workers’ compensation law, need not establish the existence of an independent legal relationship between itself and the alleged indemnitor as a condition for recovery on the basis of a common-law claim for indemnity." Skuzinski v. Bouchard Fuels, 240 Conn. 694, 702, 694 A.2d 788 (1997).
For clarity, the court notes that the defendant should have filed a motion to implead, as opposed to a motion to cite in. See General Statutes § 52-102a; Practice Book § 10-11. General Statutes § 52-102a commits the decision of whether to grant a motion to implead "to the sound discretion of the trial court." Cupina v. Bernklau, 17 Conn.App. 150, 164, 551 A.2d 37 (1988). "In exercising that discretion, courts should examine, of course whether impleader would really accomplish the stated goals of impleader and the possible prejudice of allowing the procedure." Delle Valle v. Le, Superior Court, judicial district of New Haven, Docket No. CV 07-5009855-S (June 16, 2009, Corradino, J.). This court finds that no prejudice will result from allowing J & L to be impleaded as a third-party defendant. The plaintiff asserts that she will be prejudiced if the defendant is permitted to implead J & L when she is not able to assert a direct action against J & L because the statute of limitation has expired. However, the plaintiff does not elaborate on her argument or support her position with citations to any case law. The plaintiff’s argument is inadequately briefed and will not be considered by the court. See Hill v. Bartels, 73 Conn. 588, 589-90, 808 A.2d 1176 (2002). This court also finds that the goals of impleader will be accomplished by granting the defendant’s motion by "[bringing] all of litigants into one proceeding," and disposing of the "entire matter without the expense of many suits and many trials." (Internal quotation marks omitted.) Beaudon v. Town Oil Co., 2017 Conn. 575, 588, 542 A.2d 1124 (1988). Finally, this court finds that adding J & L as a third-party defendant will not unduly delay trial. The pleadings have not been closed, and jury selection is not scheduled until October 30, 2018. For the foregoing reasons, the motion is granted.