1994 Conn. Super. Ct. 2924 | Conn. Super. Ct. | 1994
The fourth count of the amended complaint was added by order of this court. On July 11, 1990, Stamford Motors filed a motion pursuant to General Statutes
Burns now moves (#137) for summary judgment on the ground that the statute of limitations has expired. In support of such motion, Burns submitted the affidavit of Richard Martin, manager of Burns, which states that service was made on March 5, 1992, and an uncertified copy of a portion of plaintiff's deposition.
"[S]ummary judgment shall be rendered forthwith if the pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Wadia Enterprises v. Hirschfeld,
"[T]he party seeking summary judgment has the burden of showing the nonexistence of any material fact." (Citation omitted; internal quotation marks omitted.) Connecticut Bank Trust Co. v. Carriage Lane Associates,
Burns argues that since it was not served with the amended complaint until approximately eleven months after the two year negligence statute of limitations had expired, plaintiff's claim is barred as a matter of law and the court should grant summary judgment as to count four. In response, Keating argues that a party may be cited in pursuant to General Statutes
General Statutes
However, a question remains as to whether Burns should remain in the action for apportionment purposes because this court granted a motion to cite in Burns as a party defendant to this action in July, 1990, well before the statute of limitation expired. General Statutes
[u]pon motion made by any party or nonparty to a civil action, the person named in the party's motion or the nonparty so moving . . . (2) shall be made a party by the court if that person is necessary for a complete determination or settlement of any question involved therein; provided that any person who is immune from liability shall be made a defendant in the controversy.
Under General Statutes
"There is a split of authority on this court as to whether a person against whom a negligence claim is time barred ought to be made a defendant for the sole purpose of enabling the trier of fact to apportion negligence between and among those who were actually responsible and to avoid attributing to an individual defendant more than his proportionate share of the negligence." (emphasis added.) Bushie v. Putzig, 10 CTLR 228 (October 12, 1993, Mottolese, J.). One of the many ways that the court has made a party against whom negligence is barred a defendant in an action is by permitting a plaintiff to serve upon such defendant a writ of summons without a complaint, so the statute of limitations issue would never arise and the added defendant could have a percentage of his negligence assessed. Id., citing Baker v. Franco, 7 CTLR 622 (December 21, 1992, Fuller, J.).
In the present case, this court granted a motion to make Burns a party to this action in July of 1990, which is before the statute of limitations expired. "Where a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstances." Breen v. Phelps,
Thus, the motion for summary judgment as to count four of the plaintiff's complaint is granted, as the statute of limitation for negligence actions has expired. However, Burns shall remain in the action as a party defendant for purposes of apportionment, since it was cited inter the action pursuant to
So Ordered.
Dated at Stamford, Connecticut, this 17 day of March, 1994.
William B. Lewis, Judge