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June 19, 2009

Two voices are there: one is of the sea,

One of the mountains; each a mighty voice. [1]

The principle underlying the enactment of Connecticut's apportionment statute, Conn. Gen. Stat. § 52-572h, was that a negligent defendant, instead of being joint and severally liable for the entire amount of damages, should be liable only for that proportion of damages for which he was responsible.[2] Conn. Gen. Stat. Conn. Gen. Stat. § 52-572h (c) provides: "In a negligence action to recover damages resulting from personal injury, wrongful death or damage to property occurring on or after October 1, 1987, if the damages are determined to be proximately caused by the negligence of more than one party, each party against whom recovery is allowed shall be liable to the claimant only for his proportionate share of the damages." This provision replaced the common-law rule of joint and several liability with a system of apportioned liability that holds each defendant liable only for his proportionate share of damages.[3] Apportionment does not determine liability, or breach of duty; instead, it determines the degree of fault.

That provision, however, proceeds on the premise that the defendants, between or among any of whom liability is apportioned, are at least potentially liable in differing proportions. It does not apply, therefore, to a case of vicarious liability of one defendant for the conduct of another. Thus, Conn. Gen. Stat. § 52-572h does not apply, for example, when the two defendants area servant and his master who is vicariously liable for his servant's tortuous acts.[4]

Conn. Gen. Stat. § 52-102b provides the authority for a defendant in a negligence action to serve an apportionment complaint on a person not a party to the action. Specifically, subsection (a) of § 52-102b provides that: "A defendant in any civil action to which section 52-572 applies may serve a writ, summons ad 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. ... The person upon whom the apportionment complaint is served, hereinafter called the apportionment defendant, shall be a party for all purposes, including all purposes under section 52-572h."

The complaint must be served within 120 days of the return date specified in the plaintiff's original complaint.[5] If the apportionment complaint is not served within 120-day period specified by Conn. Gen. Stat. § 52-102b, the trial court will be deprived of subject matter jurisdiction, and the complaint will be dismissed.[6] The 120-day time limit is a substantive and jurisdictional prerequisite, and creates a right of action that did not previously exist at common law and, therefore, the right only exists during the prescribed time period.[7] Under Connecticut Rules of Practice, § 9-18 of the Connecticut Practice Book, Addition or Substitution of Parties; Additional Parties Summoned in by Court, is the provision to use when an apportionment complaint is filed.

[1] William Wordsworth, Thought of a Briton on the Subjugation of Switzerland, 1.1. Such could be said of the split I authority among judges of the Superior Court who have addressed the issue of whether an independent contractor can be brought by a possessor of premises into a negligent action for apportionment purposes.

[2] Bhinder v. Sun Company, Inc., 246 Conn. 223, 238 (1998).

[3] Nash v. Yap, 247 Conn. 638, 645 (1999).

[4]Gazo v. Stamford, 255 Conn. 245, 258 (2001).

[5] Conn. Gen. Stat. § 52-102b.

[6] Harvey v. Tarr, 2002 Conn. Super. LEXIS 591.

[7] Iamunno v. Perillo, 2003 Conn. Super. LEXIS 1329.