269 Conn. 10 | Conn. | 2004
Lead Opinion
Opinion
The principal issue in this appeal is whether General Statutes § 52-102b (a),
On appeal, the defendants claim that the 120 day time limitation for bringing an apportionment claim prescribed by § 52-102b (a) is directory, and therefore, the trial court, by interpreting that provision as mandatory, improperly dismissed their apportionment complaint. The defendants also claim that the trial court improperly dismissed the apportionment complaint in light of the trial court’s previous grant of an extension of time during which to bring the apportionment claim. We conclude that the 120 day time limitation contained in § 52-102b (a) is mandatory and we further determine that the ninety day extension was ineffective in extending that limitation period. We further conclude that noncompliance with § 52-102b implicates a court’s personal jurisdiction, not subject matter jurisdiction.
The following facts and procedural history guide our resolution of this appeal. In a complaint dated May 21, 2001, with a return date of June 19, 2001, the plaintiff, Stephen Lostritto,
On February 4, 2002, Neurosurgical Associates filed a motion to dismiss the apportionment complaint as it pertained to it, arguing that “the court lack[ed] jurisdiction over these Apportionment Defendants because the Apportionment Complaint [was] not in compliance with the requirements of ... § 52-102b (a).” The defendants objected, arguing that the apportionment complaint was timely filed within the ninety day extension period previously granted by the trial court and, therefore, the court had jurisdiction over the action. The trial court, Robinson-Thomas, J., granted Neurosurgical Associates’ motion, ruling that, despite the ninety day extension, it did not have jurisdiction over the apportionment action because the apportionment complaint was filed more than 120 days after the return date of the original complaint as mandated by § 52-102b (a). Thereafter, the trial court rendered a partial judgment of dismissal in favor of Neurosurgical Associates.
Murphy & Lieponis, by way of a separate motion filed on February 13, 2002, also sought to dismiss the apportionment complaint as it pertained to it. Murphy & Lieponis, like Neurosurgical Associates, claimed that the 120 day window provided by § 52-102b (a) was mandatory; however, Murphy & Lieponis specifically argued that the court “lackfed] subject matter jurisdiction over
The defendants appealed from the trial court’s judgment of dismissal as to Neurosurgical Associates to the Appellate Court.
I
The defendants’ first claim on appeal is that the 120 day time limitation for bringing an apportionment claim prescribed by § 52-102b (a) is directory and, therefore, the trial courts, which interpret,ed § 52-102b (a) as mandatory, improperly dismissed their apportionment complaint. The apportionment defendants maintain that compliance with the time limitation contained in § 52-102b (a) is mandatory and, therefore, because the defendants served the apportionment complaint more than
Resolution of this issue requires us to construe the relevant statutory provision, namely, § 52-102b (a). Thus, the question of whether the 120 day time limitation contained in § 52-102b (a) is mandatory presents a question of statutory interpretation over which our review is plenary. See Waterbury v. Washington, 260 Conn. 506, 546-47, 800 A.2d 1102 (2002).
“The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.” Public Acts 2003, No. 03-154, § l.
“The test to be applied in determining whether a statute is mandatory or directory is whether the prescribed mode of action is the essence of the thing to be accomplished, or in other words, whether it relates to a matter of substance or a matter of convenience. ... If it is a matter of substance, the statutory provision is mandatory. If, however, the legislative provision is designed to secure order, system and dispatch in the proceedings, it is generally held to be directory, especially where the requirement is stated in affirmative terms unaccompanied by negative words.” (Internal quotation marks omitted.) Williams v. Commission on Human Rights & Opportunities, 257 Conn. 258, 268, 777 A.2d 645 (2001).
We begin, as we always do, with the language of the relevant statute.
The use of the word “shall” in § 52-102b (a) suggests that the legislature intended the 120 day time limitation to be a mandatory circumscription of the right to bring an apportionment claim. “As we have often stated, [definitive words, such as must or shall, ordinarily express legislative mandates of a nondirectory nature.” (Internal quotation marks omitted.) Williams v. Commission on Human Rights & Opportunities, supra, 257 Conn. 270-71. By contrast, “[t]he word ‘may,’ unless the context in which it is employed requires otherwise, ordinarily does not connote a command. Rather, the word generally imports permissive conduct and the conferral of discretion.” Commission on Human Rights & Opportunities v. Truelove & Maclean, Inc., 238 Conn. 337, 349, 680 A.2d 1261 (1996). Therefore, when the legislature opts to use the words “shall” and “may” in the same statute, they “must then be assumed to have been used with discrimination and a full awareness of the difference in their ordinary meanings.” (Internal quotation marks omitted.) Caulkins v. Petrillo, 200 Conn. 713, 717, 513 A.2d 43 (1986). It is especially relevant that the legislature chose to use the word “shall” when referring to service of an apportionment complaint in contrast to the more permissive, “may,” which is used with respect to the right to bring an apportionment claim. This distinction, which we assume to be deliberate, suggests that the legislature intended service of an apportionment complaint within the prescribed time period to be mandatory.
Our determination that § 52-102b (a) is mandatory is further informed by the text of subsection (f) of the statute, which strongly suggests that compliance with
The linguistic evolution of § 52-102b, as illustrated by its legislative history, is also instructive. See, e.g., Donahue v. Southington, 259 Conn. 783, 790, 792 A.2d 76 (2002) (comparing original version of proposed bill to public act). Although Senate Bill No. 1012 (S.B. 1012) underwent several revisions before its ultimate passage as No. 95-111 of the 1995 Public Acts (P.A. 95-111), the precursor to § 52-102b, the legislative history reveals that, despite making other substantive changes, the legislature repeatedly opted for strong, compulsory language when referring to the time limitation for
Despite the legislature’s apparent intent to employ mandatory language, we are mindful that the word “shall” is not dispositive on the issue of whether a statute is mandatory. We have stated that “the use of the word shall, though significant, does not invariably [create] a mandatory duty.” (Internal quotation marks omitted.) State v. Pare, 253 Conn. 611, 623, 755 A.2d 180 (2000). Thus, we must consider another factor, namely, whether the time limitation contained in § 52-102b (a) is procedural or substantive.
“A statute of limitations is generally considered to be procedural, especially where the statute contains only a limitation as to time with respect to a right of action and does not itself create the right of action.”
In order to determine whether the 120 day time limitation is substantive or procedural, therefore, we must first ascertain whether § 52-102b created a right that did not exist at common law. The facts essential to this query, which we answer in the affirmative, can be found in the legislative history of that statute. Before examining the legislative history, however, we briefly summarize the development of the tort reform legislation that preceded the passage of § 52-102b, which highlights the genesis of the current statutory right to apportion liability.
This court previously has addressed at length the evolution of Tort Reform I and II, in which the legislature abolished the common-law rule of joint and several liability and replaced it with a system based on principles of comparative fault. See, e.g., Donner v. Kearse, 234 Conn. 660, 666-69, 662 A.2d 1269 (1995). “Prior to October 1, 1986, this state adhered to the rules of joint and several liability with no contribution among joint tortfeasors. . . . [Therefore, even a defendant whose degree of fault was comparatively small could be held responsible for the entire amount of damages ....
Tort Reform II, however, overlooked two significant details required to implement effectively the newly created fault apportionment system. Although § 52-572h created the right for a defendant to apportion liability to any party to the action, it did not include a means to invoke that right nor did it address the effect of the underlying statute of limitations on the apportionment claim. See Office of Legislative Research, Bill Analysis of S.B. 1012, pp. 7-8. Specifically, § 52-572h failed to provide for a means to make a nonparty a party to the action for the purpose of apportioning liability. As a member of the bar observed at a public hearing before the judiciary committee, “there exists a problem under Tort [Reform II] as to what do we do, when do we bring [parties] in . . . and what happens.” Conn. Joint Standing Committee Hearings, Judiciary, Pt. 5, 1995 Sess., p. 1752, remarks of Vincent DeAngelo, member of the executive committee of the Litigation Section of the Connecticut Bar Association. Another public hearing participant succinctly captured the practical ramifications of this omission: “[T]here are . . . problems . . . as a result of the abolition of joint and [several] liability. The first problem is that a lawyer may [bring]
To remedy these problems, the legislature adopted S.B. 1012, which was the “end result of a lengthy process of attempting to answer a question which arose because of the tort reform legislation passed several years ago.” 38 H.R. Proc., Pt. 9, 1995 Sess., p. 3267, remarks of Representative Michael Lawlor; see also Conn. Joint Standing Committee Hearings, supra, p. 1736, remarks of Robert Shea, representative for the Insurance Association of Connecticut (bill intended to “address the apportionment issue, which members of the Bar and the Judges of the Superior Court agree is currently a problem”). Specifically, the bill had two purposes: “[T]o clarify the procedures by which courts order parties to appear in a case for purposes of apportionment . . . [and] to clarify [which] statute of limitations to impose . . . .” Report on Bills Favorably Reported by Committee, Judiciary (May 5, 1995) p. 1. Thus, it is apparent that the legislature intended § 52-102b to implement the right to apportionment that previously had been created in § 52-572h. Indeed, by its own terms, § 52-102b operates only in conjunction with § 52-572h and its primary application is to effectuate the right to apportion liability. See footnote 1 of this opinion.
Having concluded that § 52-102b created rights that did not exist at common law, we further conclude that the statute’s 120 day time limitation is a substantive limitation on the right to apportionment. As we already have stated, § 52-102b was designed to create an effective means of accomplishing apportionment with reasonable certainty. This was not possible prior to § 52-102b, which delineated the proper timing and method of service of an apportionment complaint. Although § 52-102b contains some procedural aspects, its substantive purpose and effect cannot be minimized. Section 52-102b gives tangible force to the right to apportionment created in § 52-572h. Conversely, failure to comply with its requirements prevents a defendant from exercising the right to apportion liability. Accordingly, on the basis of the mandatory language employed by the legislature and our conclusion that § 52-102b (a) is substantive, we further conclude that the 120 day time limitation contained therein is mandatory.
In support of their claim that the 120 day time limitation is directory, the defendants argue that the language of § 52-102b (a) plainly contemplates service beyond 120 days. According to the defendants, § 52-102b con
Section 52-102b (b) provides in relevant part: “The apportionment defendant shall have available to him all remedies available to an original defendant including the right to assert defenses, set-offs or counterclaims against any party. If the apportionment complaint is served within the time period specified in subsection (a) of this section, no statute of limitation or repose shall be a defense or bar to such claim for apportionment . . . .” (Emphasis added.) The defendants maintain that the phrase, “[i]f the apportionment complaint is served within the time period” denotes that service within the 120 day window is optional. Specifically, they read § 52-102b (b) to suggest that, if an apportionment action is not brought within 120 days, the action will be barred by the applicable statute of limitations, thereby implicitly sanctioning the filing of an apportionment action beyond 120 days. To this extent, the defendants claim that the apportionment complaint in the present case was timely served more than 120 days after the return date, but within the statute of limitations for a medical malpractice action.
This reading takes the clause out of context and obviates the purposes of the statute. As we previously have discussed, one of the dual phrposes of § 52-102b was to establish the relationship between the timeline for bringing an apportionment claim and the underlying statute of limitations. The defendants’ reading posits a
The defendants also argue that § 52-102b (a) is merely procedural and, as such, should be considered directory. Specifically, the defendants argue that the right to bring a party into an action for apportionment of liability purposes was vested in § 52-572h by Tort Reform I in 1986 and, therefore, § 52-102b is merely a successor provision establishing the procedural mechanism by which to bring such an action. Thus, the defendants claim that § 52-102b (a) is a procedural device intended to “secure order and dispatch . . . .” We do not disagree that the right to seek apportionment of liability has existed in Connecticut since 1986. See, e.g., Donner v. Kearse, supra, 234 Conn. 666. Nor do we disagree that § 52-102b contains some procedural elements. Our disagreement, however, is with the defen
This court previously has addressed a factually similar situation in Diamond National Corp. v. Dwelle, supra, 164 Conn. 540. In that case, the plaintiff appealed from the trial court’s judgment of dismissal, in which the court held that it lacked jurisdiction over an action to enforce a mechanic’s lien due to the expiration of the statutory time limit governing the validity of the lien. In affirming the trial court’s judgment, this court stated: “[Wjhere a statute gives a right of action which did not exist at common law, and fixes the time within which the right must be enforced, the time fixed is a limitation or condition attached to the right .... Since [the relevant statute] sets the time within which the action must be commenced, it would appear that the statute conforms with the general rule and is thus a limitation on the right.” (Citations omitted; internal quotation marks omitted.) Diamond National Corp. v. Dwelle, supra, 164 Conn. 543. This court then posited the following argument: “At this point it might be argued that because the lien was limited by [one statute] and was created by a different section . . . the general míe of construction stated above does not apply. This argument, however, is based on a misunderstanding of the general rule. . . . [T]he common case [for application of the general rule] is where a statute creates a new liability and in the same section or in the same act limits the time within which it can be enforced .... But the fact that the limitation is contained in the same section or the same statute is material only as bearing on construction. It is merely a ground for saying that the limitation goes to the right created and accompanies the obligation everywhere. The same conclusion would be reached if the limitation was in a different statute, provided it was directed to the newly created liability so specifically as to warrant saying that it qualified
Finally, the defendants rely on our decision in Katz v. Commissioner of Revenue Services, 234 Conn. 614, 617, 662 A.2d 762 (1995), claiming that § 52-102b is analogous to General Statutes § 12-515,
Although we have concluded that § 52-102b (a) is mandatory, this does not end our inquiry. Rather, in order to resolve fully the issues presented in this appeal, we must consider the jurisdictional implications of our determination. Specifically, the contrasting legal arguments advanced by the apportionment defendants in the trial court require us to determine whether the mandatory 120 day time limitation implicates personal or subject matter jurisdiction.
We begin with a review of the distinctions between personal and subject matter jurisdiction. We previously have stated that “[j jurisdiction of the subject-matter is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong. ... A court has subject matter jurisdiction if it has the authority to adjudicate a particular type of legal controversy.” (Internal quotation marks omitted.) Rayhall v. Akim Co., 263 Conn. 328, 339, 819 A.2d 803 (2003). A defect in process, however, such as an improperly executed writ, implicates personal jurisdiction, rather than subject matter jurisdiction. See Brunswick v. Inland Wetlands Commission, 222 Conn. 541, 551, 610 A.2d 1260 (1992). “[Wjhen a particular method of serving process is set forth by statute, that method must be followed. . . . Unless service of process is made as the statute prescribes, the court to which it is returnable does not acquire jurisdiction. . . . The jurisdiction that is found lacking, however, is jurisdiction over the person, not the subject matter.” (Citations omitted.) Connor v. Statewide Grievance Committee, 260 Conn. 435, 442, 797 A.2d 1081 (2002); Commissioner of Transportation v. Kahn, 262 Conn. 257, 272, 811 A.2d 693 (2003).
This court previously has disavowed the notion that mandatory language is per se subject matter jurisdic
We turn again to the language of § 52-102b, which, we conclude, is a service provision by its express terms. We have noted that the legislature frequently employs
We also note that in addition to the language suggestive of service of process, § 52-102b ties the 120 day window to the return date, a device primarily concerned with matters related to service of process. See, e.g., Coppola v. Coppola, 243 Conn. 657, 661 n.8, 707 A.2d 281 (1998) (“the return date determines howto compute the time for service of process; General Statutes § 52-46; the time for filing the writ with the court; General Statutes § 52-46a; the time for the defendant to file an appearance with the court; General Statutes § 52-84; and the time for the defendant to respond to the complaint . . . Practice Book § 114 [now § 10-8]”). Therefore, because we conclude that § 52-102b is a service provision, we further determine that it implicates personal jurisdiction rather than subject matter jurisdiction.
This court repeatedly has eschewed applying the law in such a hypertechnica! manner so as to elevate form over substance. See, e.g., Stepney Pond Estates, Ltd. v. Monroe, 260 Conn. 406, 422, 797 A.2d 494 (2002) (“[t]o conclude . . . that the fact that the plaintiff invoked [a statute] instead of bringing a common-law action in equity deprived the trial court of jurisdiction would be to exalt form over substance”); Quarry Knoll II Corp. v. Planning & Zoning Commission, 256 Conn. 674, 729-30, 780 A.2d 1 (2001) (requiring planning and zoning commission to state expressly that its reasons for rejecting applications clearly outweighed need for affordable housing in order to satisfy public interests standard of subparagraph [C] of then General Statutes
II
The defendants’ second, and final, claim is that the trial courts improperly granted the apportionment defendants’ motions to dismiss because the apportionment complaint was timely filed within the ninety day extension granted by the trial court. The apportionment defendants maintain, however, that because § 52-102b (a) is mandatory, the trial court lacked the authority to extend the time for commencing an apportionment action. We agree with the apportionment defendants.
As we stated in part I of this opinion, our review of a question of statutory interpretation is plenary. See Waterbury v. Washington, supra, 260 Conn. 546-47.
The defendants’ argument falters on two grounds. First, we already have concluded that compliance with § 52-102b (a) is mandatory. “[M]andatory time limitations must be complied with absent an equitable reason
Second, § 52-190a, the statute on which the defendants premised their request for an extension of time, does not apply to apportionment claims under § 52-102b by virtue of the express wording of the statute. Section 52-190a (a) provides in relevant part that “[n]o civil action shall be filed to recover damages resulting from personal injury or wrongful death occurring on or after October 1, 1987, whether in tort or in contract, in which it is alleged that such injury or death resulted from the negligence of a health care provider, unless the attorney or party filing the action has made a reasonable inquiry as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant. ...” (Emphasis added.) By its own terms, § 52-190a (a) applies only to those actions in which a party seeks “to recover damages . . . .” Pursuant to § 52-102b (a), the demand for relief in an apportionment complaint seeks only an “apportionment of liability.” “Liability” refers to a legal obligation or responsibility; Black’s Law Dictionary (6th Ed. 1990); whereas “damages” refers to “monetary compensation” for loss or injury. Id. The terms are not synonymous. Accordingly, § 52-190a, which applies only to civil actions “to recover damages,” does not apply to apportionment complaints, which seek only an apportionment of liability.
The concurring and dissenting opinion concludes that § 52-190a applies to apportionment claims brought
That analysis also contravenes a well established rule of statutory construction by reading the words “to recover damages” out of § 52-190a. “We ordinarily do not read statutes so as to render parts of them superfluous or meaningless.” (Internal quotation marks omitted.) State v. Reynolds, 264 Conn. 1, 135, 836 A.2d 224 (2003). In concluding that § 52-190a applies to apportionment complaints, the concurring and dissenting opinion renders the phrase “to recover damages” meaningless.
The concurring and dissenting opinion disagrees with what it deems our narrow and literal reading of the statutes and maintains that §§ 52-102b and 52-190a, when read broadly, are in fact compatible. Both statutes, however, were drafted as part of, or in response to, tort reform and are therefore in derogation of the common law. See Nash v. Yap, supra, 247 Conn. 648. It is axiomatic that “statutes in derogation of common law should receive a strict construction and [should not] be extended, modified, repealed or enlarged in [their] scope by the mechanics of construction.” (Internal quotation marks omitted.) Bhinder v. Sun Co., 246 Conn. 223, 231, 717 A.2d 202 (1998). The concurrence and dissent’s broad reading of both these statutes violates this well recognized principle of statutory construction.
The concurring and dissenting opinion further states that harmonizing §§ 52-102b and 52-190a would effectuate the underlying policies of § 52-190a, which include controlling medical malpractice insurance rates. We think that conclusion is speculative at best because we do not know whether medical malpractice insurance carriers provide a defense for apportionment claims, which cannot result in a judgment for damages, and, if they do provide a defense, whether doing so without risking a judgment for damages causes an increase in malpractice insurance rates.
For all of the foregoing reasons, we conclude that the ninety day extension granted by the trial court did not extend the mandatory service period set forth in § 52-102b (a).
The judgments are affirmed.
In this the opinion SULLIVAN, C. J., and ZARELLA, J., concurred.
General Statutes § 52-102b provides: “(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 hable pursuant to said section for a proportionate share of the plaintiffs damages in which case the demand for relief shall seek an apportionment of liability. Any such writ, summons and complaint, hereinafter called the apportionment complaint, shall be served within one hundred twenty days of the return date specified in the plaintiffs original complaint. The defendant filing an apportionment complaint shall serve a copy of such apportionment complaint on all parties to the original action in accordance with the rules of practice of the Superior Court on or before the return date specified in the apportionment complaint. 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.
“(b) The apportionment complaint shall be equivalent in all respects to an original writ, summons and complaint, except that it shall include the docket number assigned to the original action and no new entry fee shall be imposed. The apportionment defendant shall have available to him all remedies available to an original defendant including the right to assert defenses, set-offs or counterclaims against any party. If the apportionment complaint is served within the time period specified in subsection (a) of
“(c) No person who is immune from liability shall be made an apportionment defendant nor shall such person’s liability be considered for apportionment purposes pursuant to section 52-572h. If a defendant claims that the negligence of any person, who was not made a party to the action, was a proximate cause of the plaintiffs injuries or damage and the plaintiff has previously settled or released the plaintiffs claims against such person, then a defendant may cause such person’s liability to be apportioned by filing a notice specifically identifying such person by name and last known address and the fact that the plaintiffs claims against such person have been settled or released. Such notice shall also set forth the factual basis of the defendant’s claim that the negligence of such person was a proximate cause of the plaintiffs injuries or damages. No such notice shall be required if such person with whom the plaintiff settled or whom the plaintiff released was previously a party to the action.
“(d) Notwithstanding any applicable statute of limitation or repose, the plaintiff may, within sixty days of the return date of the apportionment complaint served pursuant to subsection (a) of this section, assert any claim against the apportionment defendant arising out of the transaction or occurrence that is the subject matter of the original complaint.
“(e) When a counterclaim is asserted against a plaintiff, he may cause a person not a party to the action to be brought in as an apportionment defendant under circumstances which under this section would entitle a defendant to do so.
“(f) This section shall be the exclusive means by which a defendant may add a person who is or may be liable pursuant to section 52-572h for a proportionate share of the plaintiffs damages as a party to the action.
“(g) In no event shall any proportionate share of negligence determined pursuant to subsection (i) of section 52-572h attributable to an apportionment defendant against whom the plaintiff did not assert a claim be reallocated under subsection (g) of said section. Such proportionate share of negligence shall, however, be included in or added to the combined negligence of the person or persons against whom the plaintiff seeks recovery, including persons with whom the plaintiff settled or whom the plaintiff released under subsection (n) of section 52-572h, when comparing any negligence of the plaintiff to other parties and persons under subsection (b) of said section.”
Collectively, we refer to these four parties as the apportionment defendants.
The trial court did not specify whether it found a lack of subject matter jurisdiction or a lack of personal jurisdiction.
Lostritto, the original plaintiff, died on June 17, 2001. Lori Paiva, administratrix of Lostritto’s estate, was substituted as plaintiff on June 17, 2002, pursuant to General Statutes § 52-599 (b). Because Paiva did not amend the complaint to assert claims directly against the apportionment defendants, she is not a party to this appeal. For convenience, we refer to Lostritto as the plaintiff.
In a one count complaint, the plaintiff alleged that Barrett, the operator of the motor vehicle owned by Community Action, her employer, negligently collided with his vehicle while she was maMng a U-tum on Route 34 in the town of Orange.
General Statutes § 52-190a (a) provides in relevant part: “No civil action shall be filed to recover damages resulting from personal injury or wrongful death occurring on or after October 1, 1987, whether in tort or in contract, in which it is alleged that such injury or death resulted from the negligence of a health care provider, unless the attorney or party filing the action has made a reasonable inquiry as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant. The complaint or initial pleading shall contain a certificate, on a form prescribed by the rules of the superior court, of the attorney or party filing the action that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant. . . .”
As of the date the defendants filed their appeal, May 13, 2002, the trial court had not yet rendered judgment on the motion to dismiss filed by Murphy & Lieponis.
All of the apportionment defendants claim in their briefs to this court that noncompliance with § 52-102b (a) raises an issue of subject matter jurisdiction. Neurosurgical Associates claims, as an alternate ground to affirm, that § 52-102b (a) implicates personal jurisdiction. We agree with Neurosurgical Associates’ alternate ground.
Public Act 03-154 was enacted in order to overrule our rejection of the plain meaning rule in State v. Courchesne, 262 Conn. 537, 577, 816 A.2d 562 (2003).
We note that there is a division of authority in the trial court decisions addressing this issue. See, e.g., Mazzola v. Yaghma, Superior Court, judicial district of New Haven, Docket No. 403943 (January 24, 2000) (holding that compliance with § 52-102b [a] is mandatory); Ortiz v. Bridgeport Hospital, Superior Court, judicial district of New London, Docket No. 547104 (February 24, 2000) (same); contra Casey v. Allegheny Teledyne, Inc., Superior Court, judicial district of New London, Docket No. 0121238S (August 23, 2001) (120 day limitation of § 52-102b [a] is directory); Ketchale v. Unger, Superior Court, judicial district of New Haven, Docket No. 396218 (July 15, 1998) (same).
General Statutes § 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 such party’s proportionate share of the recoverable economic damages and the recoverable noneconomic damages except as provided in subsection (g) of this section.”
Some courts used General Statutes § 52-102 to permit nonparties to be brought into negligence actions for the purpose of apportioning liability. See Office of Legislative Research, supra, p. 8. Section 52-102 allowed a court, upon a motion, to make someone a parly in any civil action if he has an interest that is contrary to the plaintiffs. Id.
The statute of limitations for a medical malpractice action is two years from the date when the injury is first sustained or discovered. General Statutes § 52-584.
General Statutes § 12-515 provides: “Any taxpayer who feels that he has overpaid any taxes due under this chapter may file a claim for refund in writing with the commissioner within three years from the due date for which such overpayment was made stating the specific grounds upon which the claim is founded. Not later than ninety days following receipt of such claim for refund the commissioner shall determine whether such claim is valid and if so, said commissioner shall notify the Comptroller of the amount of such refund and the Comptroller shall draw an order on the Treasurer in the amount thereof for payment to the taxpayer. To the amount of such refund there shall be added interest at the rate of three-fourths of one per cent for each month or fraction thereof which elapses between the ninetieth day following receipt of such claim for refund by the commissioner and the date of notice by the commissioner that such refund is due. Failure to file a claim within the time prescribed in this section constitutes a waiver of any demand against the state on account of overpayment. Within thirty days after disallowing any claim in whole or in part the commissioner shall serve notice of his action on the claimant.”
In its motion to dismiss, Neurosurgical Associates claimed a lack of personal jurisdiction, arguing that the court “lacks jurisdiction over these Apportionment Defendants because the Apportionment Complaint is not in compliance with the requirements of ... § 52-102b (a).”
Murphy & Lieponis, in its motion to dismiss, claimed that the trial court “lacks subject matter jurisdiction over the apportionment complaint” because the defendant served it with the apportionment complaint more than 120 days after the return date on the original complaint. (Emphasis added.)
We are mindful that the ninety day extension granted by the trial court was uncontested. The lack of an objection, however, cannot operate as a waiver in this case because the apportionment defendants were not yet parties to the action and therefore had no notice that the extension was requested.
Concurrence Opinion
with whom KATZ, J., joins, concurring and dissenting. I agree with the well reasoned analysis
I also disagree with the conclusion reached in part II of the majority opinion that General Statutes § 52-190a,
This case involves the intersection of two separate but closely related statutes that grew out of the legislative program known as Tort Reform. Section 52-190a was enacted in 1986 by § 12 of No. 86-338 of the 1986 Public Acts, which is known as Tort Reform I. See Donner v. Kearse, 234 Conn. 660, 667, 662 A.2d 1269 (1995). A central part of Tort Reform I was the abolition
In general terms, § 52-190a (a) requires that a party may not bring an action to recover damages from a health care provider based on a claim of malpractice without (1) a reasonable inquiry leading to a good faith belief that there was malpractice, and (2) a certificate filed by the party’s attorney that such an inquiry gave rise to such a belief. Under subsection (b) of § 52-190a, the party may petition the clerk of the court for an automatic ninety day extension of the statute of limitations in order to make the reasonable inquiry required by subsection (a).
In similarly general terms, § 52-102b provides that, if a defendant in a tort action believes that another person is or may be hable for a proportionate share of the plaintiffs damages, the defendant may serve an apportionment writ, summons and complaint on that other person and seek the relief of an apportionment of liability. This apportionment complaint must be filed within 120 days of the return day of the underlying tort complaint.
With this general background in mind, I first briefly recap the facts and procedures of this case. With a return date of June 19, 2001, the plaintiff, Stephen Los-
The majority concludes, however, that the trial courts properly granted the motions to dismiss filed by Neuro-surgical Associates and Muiphy & Lieponis, for two reasons. First, the 120 day time limit imposed by § 52-102b (a) for filing is mandatory, and on the facts of this case, there is no equitable basis for excusing compliance with it. Second, the ninety day extension granted by the court was ineffectual. In this latter regard, the majority reasons that § 52-190a, which requires a reasonable inquiry and good faith certificate before bringing a medical malpractice action, does not apply to apportionment complaints because such a complaint is not an action “to recover damages” within the meaning of § 52-190a (a); it is, instead, an action for “apportionment of liability” within the meaning of § 52-102b (a).
This conclusion is a classic example of the adage, “No good deed goes unpunished.” Under the majority’s
I begin my analysis with an examination of the history and purposes of § 52-190a, which requires that, before
By 1995, however, it had become apparent that there were unanticipated procedural difficulties in implementing the system of proportional liability, particularly where the plaintiff had not brought an action against another potential tortfeasor whom the original defendant believed should share in the proportional liability. As the majority opinion aptly states, the legislature therefore enacted § 52-102b to implement the right to apportionment previously created by § 52-572h by clarifying the procedures by which other potential tortfea-sors could be made parties for purposes of apportionment. It is significant, moreover, that, to the extent that, as the majority also aptly states, there is a “symbiotic relationship between §§ 52-102b and 52-572h,” there is also an intimate relationship between §§ 52-102b and 52-190a, because part of the essential rationale for § 52-190a was the right to apportionment created by § 52-102b. Put another way, § 52-190a, as a legislative solution to the medical malpractice crisis, was premised in part on the associated enactment of proportional liability as a means of reducing the attractiveness of the medical profession’s deep pockets. Thus, in my view, §§ 52-102b and 52-190a should be read together, so as to form a rational and coherent whole.
There is no question that a defendant who seeks to apportion liability to a potential tortfeasor who happens
I turn, therefore, first to the language of § 52-102b, and I conclude that the language used is broad enough so as to be appropriately interpreted to carry out the purposes of § 52-190a. Although § 52-102b (a) refers, as the prayer for relief of such a complaint, to “an apportionment of liability,” its predicate is that the complaint be served “upon a person not a party to the action who is or may be hable . . . for a proportionate share of the plaintiffs damages . . . .” (Emphasis added.) Thus, functionally, apportionment of liability and apportionment of damages go hand in hand. Indeed, that is made explicit by § 52-102b (f), which provides: “This section shall be the exclusive means by which a defendant may add a person who is or may be liable pursuant to section 52-572h for a proportionate share of the plaintiffs damages as aparty to the action.” (Emphasis added.) We must turn, therefore, to § 52-572h (c) and (d),
Second, subsection (b) of § 52-102b provides in relevant part: “The apportionment complaint shall be equivalent in all respects to an original writ, summons and complaint, except that it shall include the docket number assigned to the original action and no new entry fee shall be imposed. . . .” This language supports the notion that § 52-102b ought to be read in conjunction with § 52-190a. Indeed, the phrase “equivalent in all respects to an original writ, summons and complaint,” strongly suggests that a defendant seeking to implead a third party under § 52-102b (b) must comply with the same procedures as a plaintiff serving the original complaint under §§ 52-572h and 52-190a. In any action to recover damages from a health care provider, the “complaint or initial pleading shall contain a certificate” of good faith. General Statutes § 52-190a (a). Thus, if
In addition, the language of § 52-102b is certainly capacious enough to encompass a meaning consistent with an action “to recover damages” contained in § 52-190a (a), because an original writ against the health care provider would certainly be viewed as a claim for recovery of money damages. This conclusion is buttressed by the reference to § 52-572h in the first sentence of § 52-102b (a): “A defendant in any civil action to which section 52-572h applies . . . .” This reference to § 52-572h runs counter to the majority’s attenuated distinction between the phrases an action “to recover damages” and “apportionment of liability,” because the scope and tenor of § 52-572h applies to actions to recover damages. Indeed, § 52-572h is replete with references to the word “damages.” Section 52-572h (a) defines “ ‘[ejconomic damages,’ ” “ ‘noneconomic damages,’ ” “ ‘recoverable economic damages,’ ” and “ ‘recoverable noneconomic damages.’ ” The remainder of the statute then goes on to discuss damages in varying scenarios. Thus, if the procedures for filing an apportionment complaint under § 52-102b are applicable only to actions governed by § 52-572h, and if the remedies available under § 52-572h focus solely on “damages,” then it seems to me that the legislature contemplated apportionment complaints to not only apportion liability, but also to shift damages. Any other conclusion elevates form over substance.
I conclude, therefore, that the language in § 52-102b (a) on which the majority so heavily relies, namely, an action “to recover damages,” does not exclude an apportionment complaint against a health care provider. Read in context, and together with §§ 52-102b (b) and (f), and 52-572h (d), subsection (a) of § 52-102b is broad enough to mean, and was intended to mean,
Finally, in my view, most, if not all, of the purposes of § 52-190a (a) would be served by considering an apportionment complaint against a health care provider as coming within the strictures of § 52-190a, and a contrary conclusion would be wholly inconsistent with those purposes. As I have indicated previously, those purposes are: (1) to control medical malpractice insurance rates;
It is arguable, at least, that requiring compliance with § 52-190a for apportionment complaints against health care providers would help control medical malpractice insurance rates. It is true that, because such a complaint
The next three purposes would also be served. It is clear to me that requiring a defendant to make a reasonable investigation, and secure a good faith certificate, before alleging malpractice against a health care provider in an apportionment complaint, would discourage baseless allegations, help reduce the practice by providers of unduly defensive medicine, and help reduce the toll on such providers taken by such allegations. The final purpose—to remove the incentive to view the provider as a potential deep pocket—would neither be served nor disserved by imposing the requirement.
Taking the contrary view, as the majority does, moreover, would be contrary to those purposes. From the viewpoint of the provider, who has to defend himself against such allegations of malpractice, it would make little difference whether the allegations come in the form of a complaint by the plaintiff or an apportionment complaint by the defendant—in either instance, the provider is haled into court without a good faith predicate, and is required to defend himself against a factual claim of medical malpractice.
I conclude, therefore, that, on the basis of both the language and purposes of § 52-190a, taken together, an
Simply put, it was entirely reasonable, in my view, for these two defendants in a commonplace motor vehicle negligence case, to seek an additional ninety days from the court so as to make a reasonable investigation before making such serious allegations of malpractice against Neurosurgical Associates and Murphy & Lie-ponis. They represented to the court that such an “extension of time is necessary to allow the defendants an opportunity to conduct a reasonable inquiry as required by Connecticut General Statute[s] § 52-190[a] (a) et seq., to determine whether or not there is a good faith basis for a claim of negligence against any health care providers who rendered care and treatment to the plaintiff . . . .” We should encourage, rather than
I therefore respectfully dissent, and would reverse the judgments of the trial courts dismissing the apportionment complaint.
General Statutes § 52-102b provides: “(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 plaintiffs damages in which case the demand for relief shall seek an apportionment of liability. Any such writ, summons and complaint, hereinafter called the apportionment complaint, shall be served within one hundred twenty days of the return date specified in the plaintiffs original complaint. The defendant filing an apportionment complaint shall serve a copy of such apportionment complaint on all parlies to the original action in accordance with the rules of practice of the Superior Court on or before the return date specified in the apportionment complaint. 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.
“(b) The apportionment complaint shall be equivalent in all respects to an original writ, summons and complaint, except that it shall include the docket number assigned to the original action and no new entry fee shall be imposed. The apportionment defendant shall have available to him all remedies available to an original defendant including the right to assert defenses, set-offs or counterclaims against any party. If the apportionment complaint is served within the time period specified in subsection (a) of this section, no statute of limitation or repose shall be a defense or bar to such claim for apportionment, except that, if the action against the defendant who instituted the apportionment complaint pursuant to subsection (a) of 1his section is subject to such a defense or bar, the apportionment defendant may plead such a defense or bar to any claim brought by the plaintiff directly against the apportionment defendant pursuant to subsection (d) of this section.
“(c) No person who is immune from liability shall be made an apportionment defendant nor shall such person’s liability be considered for apportionment purposes pursuant to section 52-572h. If a defendant claims that the negligence of any person, who was not made a party to the action, was a proximate cause of the plaintiffs injuries or damage and the plaintiff has previously sett led or released the plaintiffs claims against such person, then a defendant may cause such person’s liability to be apportioned by filing a notice specifically identifying such person by name and last known address and the fact that the plaintiffs claims against such person have been settled or released. Such notice shall also set forth the factual basis of the defendant’s claim that tire negligence of such person was a proximate cause of the plaintiffs injuries or damages. No such notice shall be required if such person with whom the plaintiff settled or whom the plaintiff released was previously a party to the action.
“(d) Notwithstanding any applicable statute of limitation or repose, the plaintiff may, within sixty days of the return date of the apportionment
“(e) When a counterclaim is asserted against a plaintiff, he may cause a person not a party to the action to be brought in as an apportionment defendant under circumstances which under this section would entitle a defendant to do so.
“(f) This section shall be the exclusive means by which a defendant may add a person who is or may be liable pursuant to section 52-572h for a proportionate share of the plaintiffs damages as a party to the action.
“(g) In no event shall any proportionate share of negligence determined pursuant to subsection (f) of section 52-572h attributable to an apportionment defendant against whom the plaintiff did not assert a claim be reallocated under subsection (g) of said section. Such proportionate share of negligence shall, however, be included in or added to the combined negligence of the person or persons against whom the plaintiff seeks recovery, including persons with whom the plaintiff settled or whom the plaintiff released under subsection (n) of section 52-572h, when comparing any negligence of the plaintiff to other parties and persons under subsection (b) of said section.”
General Statutes § 52-190a provides: “(a) No civil action shall be filed to recover damages resulting from personal injury or wrongful death occurring on or after October 1, 1987, whether in tort or in contract, in which it is alleged that such injury or death resulted from the negligence of a health care provider, unless the attorney or party filing the action has made a reasonable inquiry as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant. The complaint or initial pleading shall contain a certificate, on a form prescribed by the rules of the superior court, of the attorney or party filing the action that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant. For purposes of this section, such good faith may be
“(b) Upon petition to the clerk of the court where the action will be filed, an automatic ninety-day extension of the statute of limitations shall be granted 1o allow 1he reasonable inquiry required by subsection (a) of this section. This period shall be in addition to other tolling periods.”
It is true, of course, that Community Action and Barrett did not strictly comply with § 52-190a (b), because they moved the court for the additional ninety days, rather than, as subsection (b) provides, simply petitioning the clerk for an “automatic ninety-day extension of the statute of limitations” that, the statute also provides, “shall be granted to allow the reasonable inquiry required by subsection (a) of this section.” It would be bizarre to conclude, however, and neither Neurosurgical Associates nor Murphy & Lieponis contends, that the court did not have the power to grant what the statute commands the clerk to grant.
In their apportionment complaint, Community Action and Barrett alleged that Neurosurgical Associates and Muiphy & Lieponis had committed the following acts of medical malpractice: failure to evaluate the plaintiffs progressive neurological deterioration; failure to diagnose the plaintiffs condition; failure to treat the plaintiff properly; failure to use appropriate preoperative and intraoperative preparations; and failure to employ proper surgical techniques and instruments.
Murphy & Lieponis, in its brief to this court, specifically “acknowledges that the apportionment complaint was served before the expiration of that [ninety] day period” granted by the court, and Neurosurgical Associates makes no claim in this court that it was not served within the ninety day period.
I note 1hat, in rejecting my statutory analysis, the majority, when relying on No. 03-154 of the 2003 Public Acts (P.A. 03-154), relies only on the first sentence of that act, which provides: “The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its
The majority does not, however, rely on the second sentence of P.A. 03-154, which provides: “If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.” It is clear to me that, when reading §§ 52-102b and 52-190a together, as P.A. 03-154 requires (meaning of statute in first instance to “be ascertained from the text of the statute itself and its relationship to other statutes” [emphasis added]), § 52-190a is not plain and unambiguous, and that precluding its applicability to an apportionment complaint will “yield [an] absurd or unworkable [result] . . . .” P.A. 03-154. Therefore, I conclude that a proper application of the process of statutory interpretation in this instance is not constrained by P.A. 03-154.
The particular legislative history to which I refer includes the committee hearings on the bills that eventually became Tort Reform I. We have long recognized testimony in committee hearings as relevant to the meaning of legislative language, because it indicates the problems that the legislature was attempting to resolve in enacting the legislation. See Burke v. Fleet National Bank, 252 Conn. 1, 17, 742 A.2d 293 (1999); Toise v. Rowe, 243 Conn. 623, 630, 707 A.2d 25 (1998).
General Statutes § 52-572h (c) provides: “In a negligence action to recover damages resulting from personal injury, wrongful death or damage to properly 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 such parly’s proportionate share of the recoverable economic damages and the recoverable noneconomic damages except as provided in subsection (g) of this section.”
This naiTOW reading places a heavy burden on the legislature when drafting a statute, and ignores the rule of statutory construction that requires this court to interpret statutes so as to create one harmonious body of law. Interlude, Inc. v. Skurat, supra, 266 Conn. 143. For instance, General Statutes § 62-584 provides in relevant part: “No action to recover damages . . . caused by negligence . . . shall be brought but within two years . . . .” Read narrowly and literally, that language suggests that “no action” may ever exceed that two year limitation period. In addition, § 52-584 makes no reference to § 52-190a, and does not contain limiting language such as “except as otherwise provided.” Yet, § 52-190a (b) expressly permits parties to extend the limitation period by ninety days in order to obtain a certificate of good faith. It would be untenable to argue that the legislature’s failure to provide excepting language in § 52-584 would somehow render § 52-190a inapplicable to § 52-584. The majority concludes, however, that the legislature’s use of the phrase “ ‘apportionment of liability,’ ” as opposed to, say, “apportionment of damages” or “apportionment of liability and damages,” either of which the legislature plainly meant, somehow removes outright § 52-102b from the statutory scheme governing negligence actions seeking damages.
General Statutes § 52-572h provides in relevant part: “(c) 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
“(d) The proportionate share of damages for which each party is liable is calculated by multiplying the recoverable economic damages and the recoverable noneconomic damages by a fraction in which the numerator is the party’s percentage of negligence, which percentage shall be determined pursuant to subsection (f) of this section, and the denominator is the total of the percentages of negligence, which percentages shall be determined pursuant to subsection (f) of this section, to be attributable to all parties whose negligent actions were a proximate cause of the injury, death or damage to property including settled or released persons under subsection (n) of this section. Any percentage of negligence attributable to the claimant shall not be included in the denominator of the fraction. . . .”
Indeed, the language “the demand for relief shall seek an apportionment of liability” in § 52-102b (a) would serve the same purpose if the legislature had written “the demand for relief shall seek an apportionment of damages.”
The majority dismisses this contention as “speculative.” I do not say, however, as the majority suggests, that an apportionment complaint against a health care provider will trigger a duty to defend; I acknowledge that this court has not decided that question. To cast the point aside as “speculative,” however, simply misses the point, because the question of whether a duty to defend will be triggered necessarily depends on the contractual terms of the insurance policy at issue. Merely because a duty to defend might be triggered, as opposed to will be triggered, by an apportionment complaint, does not render the contention unworthy of consideration. My point is that a health care provider has a powerful argument for a duty to defend when an apportionment complaint is filed against him—a proposition that hardly can be deemed “speculative.”
Indeed, this is the only argument presented in this concurring and dissenting opinion to which the majority responds at all. The majority does not, for example, discuss: why the other identified purposes of § 52-190a are not furthered by requiring its application to an apportionment complaint; why the provisions of § 52-102b (b) do not require such an application; or why the provisions of § 52-584 do not also require such an application.
Indeed, in the context of tort reform legislation, we have recently followed the same principle of statutory interpretation of reading facially disparate statutory provisions “together to create a harmonious body of law . . . and ... to avoid conflict between them.” (Internal quotation marks omitted.) Collins v. Colonial Penn Ins. Co., 257 Conn. 718, 742, 778 A.2d 899 (2001). In Collins, we harmonized General Statutes §§ 52-572h and 38a-336, by interpreting the phrase, “legally entitled to recover as damages,” to include statutory apportionment of a contractual claim for uninsured motorist benefits, despite the provision that apportionment was not to include liability on “any basis other than negligence . . . .” (Internal quotation marks omitted.) Id., 740. This was because “[t]he uninsured motorist statutes and regulations incorporate the negligence law of liability and damages involving claims in which joint tortfeasors are present”; id., 741; and because to do so “allow[ed] for the principles guiding Tort Reform II [Public Acts 1987, No. 87-227] to be applied equitably.” Id., 742.
The majority itself recognized that there is a split of authority in the Superior Court as to whether an apportionment complaint against a provider requires a good faith certificate. See footnote 10 of the majority opinion. The defendants should not be penalized for following a reasonable interpretation of many of our trial court judges regarding an unsettled issue in our law.
