apportionment claim in Connecticut

1999CT Page 805 Because § 52-102b is clear and unambiguous, and sets forth the exclusive means for asserting an apportionment claim; Paul v. McPhee Electrical Contractors , 46 Conn. App. 18 , 22 (1997); the apportionment complaint of the defendant, Alexander Moore, Ltd., must fail.

1998Paul v. McPhee Electrical Contractors, 46 Conn. App. 18 , 21-22 (1997).

2011The defendant has directed us to Connecticut Mobile Home Assn., Inc. v. Jensen’s, Inc., supra, 178 Conn. 586 , as the controlling case.

2006In so doing, the court relied on two cases, Baxter v. Cardiology Associates of New Haven, P.C., 46 Conn. App. 377 , 699 A.2d 271 , cert. denied, 243 Conn. 933 , 702 A.2d 640 (1997), and Stowe v. McHugh, 46 Conn. App. 391 , 699 A.2d 279 , cert. denied, 243 Conn. 932 , 701 A.2d 662 (1997).

2006In so doing, the court relied on two cases, Baxter v. Cardiology Associates of New Haven, P.C., 46 Conn. App. 377 , 699 A.2d 271 , cert. denied, 243 Conn. 933 , 702 A.2d 640 (1997), and Stowe v. McHugh, 46 Conn. App. 391 , 699 A.2d 279 , cert. denied, 243 Conn. 932 , 701 A.2d 662 (1997).

2006In so doing, the court relied on two cases, Baxter v. Cardiology Associates of New Haven, P.C., 46 Conn. App. 377 , 699 A.2d 271 , cert. denied, 243 Conn. 933 , 702 A.2d 640 (1997), and Stowe v. McHugh, 46 Conn. App. 391 , 699 A.2d 279 , cert. denied, 243 Conn. 932 , 701 A.2d 662 (1997).

2006In so doing, the court relied on two cases, Baxter v. Cardiology Associates of New Haven, P.C., 46 Conn. App. 377 , 699 A.2d 271 , cert. denied, 243 Conn. 933 , 702 A.2d 640 (1997), and Stowe v. McHugh, 46 Conn. App. 391 , 699 A.2d 279 , cert. denied, 243 Conn. 932 , 701 A.2d 662 (1997).

2006In so doing, the court relied on two cases, Baxter v. Cardiology Associates of New Haven, P.C., 46 Conn. App. 377 , 699 A.2d 271 , cert. denied, 243 Conn. 933 , 702 A.2d 640 (1997), and Stowe v. McHugh, 46 Conn. App. 391 , 699 A.2d 279 , cert. denied, 243 Conn. 932 , 701 A.2d 662 (1997).

2006In so doing, the court relied on two cases, Baxter v. Cardiology Associates of New Haven, P.C., 46 Conn. App. 377 , 699 A.2d 271 , cert. denied, 243 Conn. 933 , 702 A.2d 640 (1997), and Stowe v. McHugh, 46 Conn. App. 391 , 699 A.2d 279 , cert. denied, 243 Conn. 932 , 701 A.2d 662 (1997).

2006In so doing, the court relied on two cases, Baxter v. Cardiology Associates of New Haven, P.C., 46 Conn. App. 377 , 699 A.2d 271 , cert. denied, 243 Conn. 933 , 702 A.2d 640 (1997), and Stowe v. McHugh, 46 Conn. App. 391 , 699 A.2d 279 , cert. denied, 243 Conn. 932 , 701 A.2d 662 (1997).

2006In so doing, the court relied on two cases, Baxter v. Cardiology Associates of New Haven, P.C., 46 Conn. App. 377 , 699 A.2d 271 , cert. denied, 243 Conn. 933 , 702 A.2d 640 (1997), and Stowe v. McHugh, 46 Conn. App. 391 , 699 A.2d 279 , cert. denied, 243 Conn. 932 , 701 A.2d 662 (1997).

2002The Superior Courts, however, have addressed this issue squarely and concluded that "it violates public policy in Connecticut to permit successor counsel . . . entering a case to correct an alleged malpractice of prior counsel, to be made party to a malpractice action by the defendants in a malpractice action against them." Gauthier v. Kearns , 47 Conn. Sup. 166 , 178-79 , 780 A.2d 1016 (2000); see also Krawczyk v. Stingle , 208 Conn. 239 , 245 , 543 A.2d 733 (1988) (question of attorney liability to parties with whom there is not privity of contract is question of public policy).

2002In the majority of Superior Court cases that have addressed this issue, the court has determined that the 120 day limitations period in § 52-102b (a) is jurisdictional and mandatory and have "concluded that a court lacks jurisdiction over an apportionment claim not served 120 days of the return date of the original complaint." Perazelli v. Tilcon Connecticut, Inc. , Superior court, judicial district of Waterbury, Docket No. 154903 (November 6, 2000, Rogers, J .); see also Ortiz v. Bridgeport Hospital , Superior Court, judicial district of New London at New London, Docket No. 547104 (February 2

2001A counterclaim, however, "is a cause of action . . . on which the defendant might have secured affirmative relief had he sued the plaintiff in a separate action." Wallingford v. Glen Valley Associates, Inc., 190 Conn. 158 , 160 , 459 A.2d 525 (1983); see also Somers v. Heise, supra, 17 Conn. L.

2001Surely this is not a result intended by the legislature, and, in construing statutes, one of the many cardinal rules is that "[t]he law favors a rational statutory construction and we presume that the legislature intended a sensible result." Interlude, Inc. v. Skurat, 253 Conn. 531 , 539 , 754 A.2d 153 (2000).

2001Surely this is not a result intended by the legislature, and, in construing statutes, one of the many cardinal rules is that "[t]he law favors a rational statutory construction and we presume that the legislature intended a sensible result." Interlude, Inc. v. Skurat, 253 Conn. 531 , 539 , 754 A.2d 153 (2000).

2001Moreover, we note that [wihat is necessarily implied [in an allegation] need not be expressly alleged." (Citations omitted; internal quotation marks omitted.) Gazo v. Stamford , 255 Conn. 245 , 260 , 765 A.2d 505 (2001) Tower Cleaning, an independent contractor, moves to strike the apportionment claim on the ground that First Union, as an occupier of the premises, has a nondelegable duty to invitees such as the plaintiff, and cannot absolve itself of liability by delegating that duty to a contractor.

2001Moreover, we note that [wihat is necessarily implied [in an allegation] need not be expressly alleged." (Citations omitted; internal quotation marks omitted.) Gazo v. Stamford , 255 Conn. 245 , 260 , 765 A.2d 505 (2001) Tower Cleaning, an independent contractor, moves to strike the apportionment claim on the ground that First Union, as an occupier of the premises, has a nondelegable duty to invitees such as the plaintiff, and cannot absolve itself of liability by delegating that duty to a contractor.

2001DISCUSSION The purpose of a motion to strike is to "challenge the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." Peter-Michael, Inc. v. Sea Shell Associates, 244 Conn. 269 , 270 , 709 A.2d 558 (1998).

2001DISCUSSION The purpose of a motion to strike is to "challenge the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." Peter-Michael, Inc. v. Sea Shell Associates, 244 Conn. 269 , 270 , 709 A.2d 558 (1998).

2001Rptr. 403 , 404-06) (allowing the apportionment claim because § 52-102b (a) applies only when the defendant seeks to add a party); Farmer v. Christianson, Superior Court, judicial district of Rockville, Docket No. 71954 (May 4, 2000, Sullivan, J .) ( 27 Conn. L.

2001Rptr. 403 , 404-06) (allowing the apportionment claim because § 52-102b (a) applies only when the defendant seeks to add a party); Farmer v. Christianson, Superior Court, judicial district of Rockville, Docket No. 71954 (May 4, 2000, Sullivan, J .) ( 27 Conn. L.

2001Rptr. 311 ) (holding that the apportionment claim should be allowed because the plaintiff was not a party to the action within the meaning of § 52-102b (a)); Torres v. Begic, Superior Court, judicial district of New Haven, Docket No. 423742 (June 13, 2000, Levin, J .) ( 27 Conn. L.

2001A counterclaim, however, "is a cause of action . . . on which the defendant might have secured affirmative relief had he sued the plaintiff in a separate action." Wallingford v. Glen Valley Associates, Inc., 190 Conn. 158 , 160 , 459 A.2d 525 (1983); see also Somers v. Heise, supra, 17 Conn. L.

2000We do want to point out, however, that “a directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed”; United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 380 , 260 A.2d 596 (1969); and that “[ijssues of negligence are ordinarily not susceptible of summary abdication 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)

2000We do want to point out, however, that “a directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed”; United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 380 , 260 A.2d 596 (1969); and that “[ijssues of negligence are ordinarily not susceptible of summary abdication 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)

2000It is well established that “[a] request to charge which is relevant to the issues of the case and which is an accurate statement of the law must be given.” 3 (Internal quotation marks omitted.) State v. Lepri, 56 Conn. App. 403, 412 , 743 A.2d 626 , cert. denied, 253 Conn. 902 , 753 A.2d 938 (2000). “[A] trial court should instruct a jury on [every] issue for which there is any foundation in the evidence, even if weak or incredible.” (Internal quotation marks omitted.) Eisenbach v. Downey, 45 Conn. App. 165, 182 , 694 A.2d 1376 , cert. denied, 241 Conn. 926 , 696 A.2d 1264 (1997).

2000It is well established that “[a] request to charge which is relevant to the issues of the case and which is an accurate statement of the law must be given.” 3 (Internal quotation marks omitted.) State v. Lepri, 56 Conn. App. 403, 412 , 743 A.2d 626 , cert. denied, 253 Conn. 902 , 753 A.2d 938 (2000). “[A] trial court should instruct a jury on [every] issue for which there is any foundation in the evidence, even if weak or incredible.” (Internal quotation marks omitted.) Eisenbach v. Downey, 45 Conn. App. 165, 182 , 694 A.2d 1376 , cert. denied, 241 Conn. 926 , 696 A.2d 1264 (1997).

2000It is well established that “[a] request to charge which is relevant to the issues of the case and which is an accurate statement of the law must be given.” 3 (Internal quotation marks omitted.) State v. Lepri, 56 Conn. App. 403, 412 , 743 A.2d 626 , cert. denied, 253 Conn. 902 , 753 A.2d 938 (2000). “[A] trial court should instruct a jury on [every] issue for which there is any foundation in the evidence, even if weak or incredible.” (Internal quotation marks omitted.) Eisenbach v. Downey, 45 Conn. App. 165, 182 , 694 A.2d 1376 , cert. denied, 241 Conn. 926 , 696 A.2d 1264 (1997).

2000It is well established that “[a] request to charge which is relevant to the issues of the case and which is an accurate statement of the law must be given.” 3 (Internal quotation marks omitted.) State v. Lepri, 56 Conn. App. 403, 412 , 743 A.2d 626 , cert. denied, 253 Conn. 902 , 753 A.2d 938 (2000). “[A] trial court should instruct a jury on [every] issue for which there is any foundation in the evidence, even if weak or incredible.” (Internal quotation marks omitted.) Eisenbach v. Downey, 45 Conn. App. 165, 182 , 694 A.2d 1376 , cert. denied, 241 Conn. 926 , 696 A.2d 1264 (1997).

2000Travelers Indemnity Company contends that in light of the Connecticut Supreme Court decision in Haynes v. Yale New Haven Hospital , 243 Conn. 17 (1997) it should be viewed as a liability insurance surrogate for the uninsured or underinsured motorist tortfeasor with the corresponding right to assert an apportionment claim.

2000It is well established that “[a] request to charge which is relevant to the issues of the case and which is an accurate statement of the law must be given.” 3 (Internal quotation marks omitted.) State v. Lepri, 56 Conn. App. 403, 412 , 743 A.2d 626 , cert. denied, 253 Conn. 902 , 753 A.2d 938 (2000). “[A] trial court should instruct a jury on [every] issue for which there is any foundation in the evidence, even if weak or incredible.” (Internal quotation marks omitted.) Eisenbach v. Downey, 45 Conn. App. 165, 182 , 694 A.2d 1376 , cert. denied, 241 Conn. 926 , 696 A.2d 1264 (1997).

2000It is well established that “[a] request to charge which is relevant to the issues of the case and which is an accurate statement of the law must be given.” 3 (Internal quotation marks omitted.) State v. Lepri, 56 Conn. App. 403, 412 , 743 A.2d 626 , cert. denied, 253 Conn. 902 , 753 A.2d 938 (2000). “[A] trial court should instruct a jury on [every] issue for which there is any foundation in the evidence, even if weak or incredible.” (Internal quotation marks omitted.) Eisenbach v. Downey, 45 Conn. App. 165, 182 , 694 A.2d 1376 , cert. denied, 241 Conn. 926 , 696 A.2d 1264 (1997).

2000It is well established that “[a] request to charge which is relevant to the issues of the case and which is an accurate statement of the law must be given.” 3 (Internal quotation marks omitted.) State v. Lepri, 56 Conn. App. 403, 412 , 743 A.2d 626 , cert. denied, 253 Conn. 902 , 753 A.2d 938 (2000). “[A] trial court should instruct a jury on [every] issue for which there is any foundation in the evidence, even if weak or incredible.” (Internal quotation marks omitted.) Eisenbach v. Downey, 45 Conn. App. 165, 182 , 694 A.2d 1376 , cert. denied, 241 Conn. 926 , 696 A.2d 1264 (1997).

2000It is well established that “[a] request to charge which is relevant to the issues of the case and which is an accurate statement of the law must be given.” 3 (Internal quotation marks omitted.) State v. Lepri, 56 Conn. App. 403, 412 , 743 A.2d 626 , cert. denied, 253 Conn. 902 , 753 A.2d 938 (2000). “[A] trial court should instruct a jury on [every] issue for which there is any foundation in the evidence, even if weak or incredible.” (Internal quotation marks omitted.) Eisenbach v. Downey, 45 Conn. App. 165, 182 , 694 A.2d 1376 , cert. denied, 241 Conn. 926 , 696 A.2d 1264 (1997).

2000The great majority of Superior Court cases that have considered the matter have concluded that a court lacks jurisdiction over an apportionment claim not served within 120 days of the return date of the original complaint, see McDuff v. Tamborlane , 22 Conn. L Rptr. 364, 365 (1998); Stroud v. Pfeffer , 16 Conn. L.

2000We do want to point out, however, that “a directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed”; United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 380 , 260 A.2d 596 (1969); and that “[ijssues of negligence are ordinarily not susceptible of summary abdication 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)

2000We do want to point out, however, that “a directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed”; United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 380 , 260 A.2d 596 (1969); and that “[ijssues of negligence are ordinarily not susceptible of summary abdication 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)