Superior Court of Connecticut, Judicial District of Waterbury, Waterbury
MEMORANDUM OF DECISION RE MOTION TO DISMISS #167
Andrew W. Roraback, J.
At the heart of this motion is the following question: " Do the equitable considerations which can operate to justify exceptions to the 120-day time limit for filing an apportionment complaint as set forth in General Statutes § 52-102b(a) apply with equal measure when considering whether to countenance noncompliance with the one-year time limit for impleading a third party under § 52-577a(b) of the Connecticut Products Liability Act?" For the reasons set forth below, this court answers this question in the affirmative and therefore denies the motion to dismiss.
The following facts are relevant to the disposition of this motion. On June 12, 2012, the plaintiff, Jerry Iodice, filed a complaint against multiple defendants who were involved in the construction of a log home for him in Southbury, Connecticut. After completion of the construction, the plaintiff alleges that the home began to leak resulting in him suffering damages. The original defendants were (1) Bud Santo, the general contractor, individually, (2) Bud Santo Builders, Inc., (3) Ward Cedar Log Homes, Inc., the provider of the log home kit (hereinafter " Ward"), (4) John Whaley, the person who stained and caulked the log home, individually, (5) Whaley Painting Contractors, LLC, and (6) Sashco, Inc., the manufacturer of the stain and caulk which were used in the construction and finishing of the home (hereinafter " Sashco").
The original complaint contained four counts each against Ward and Sashco, sounding in negligence, breach of contract, breach of warranty, and the Connecticut Products Liability Act, General Statutes § 52-572m et seq. All but the products liability counts were stricken as to Sashco on December 5, 2012 and as to Ward on February 4, 2013, on the ground that the exclusive remedy provisions of General Statutes § 52-572n(a) barred the claims for negligence, breach of contract, and breach of warranty.
On March 18, 2013, the court, Sheedy, J., entered a non-suit against the plaintiff with respect to the one count which remained pending against Sashco. The non-suit was predicated on the plaintiff's ongoing failure to respond to Sashco's discovery requests. The non-suit was entered more than one year after the return date in this action of March 27, 2012. The plaintiff failed to move to open the judgment of non-suit within the four-month time limit and therefore lost the opportunity to reopen the judgment in the end of July 2013.
Meanwhile, in light of this non-suit, Ward filed a motion to implead Sashco on May 16, 2014 which the court, Sheedy, J., granted on June 2, 2014. In its third-party complaint, Ward alleges that the active negligence of Sashco, rather than any passive negligence which might be ascribed to Ward, was the direct and immediate cause of the plaintiff's damages. By way of this third-party complaint, Ward therefore seeks common-law indemnification against Sashco.
On September 4, 2014, Sashco filed this motion to dismiss Ward's third-party complaint on the grounds that it is time barred by the one-year limitation contained in § 52-577a(b). At the argument held on this motion, neither counsel disputed that if this motion were granted, Ward would nevertheless be statutorily permitted to bring an independent and identical common-law indemnification claim against Sashco in the event Ward settled with the original plaintiff, Iodoce, or if that plaintiff secured a judgment against Ward.
Finally, and particularly worthy of consideration in deciding this motion, is the following. The third-party plaintiff, Ward, had no control over and could not reasonably have been expected to anticipate that the original plaintiff would act in derogation of both his responsibilities under the Practice Book and his obligation to abide by court orders regarding discovery to a degree that a non-suit would enter against him with respect to his claims against Sashco. At least equally unforeseeable was that the plaintiff would neglect to move to open the non-suit within the four-month period provided by Practice Book § 17-43 and would thus be removed from the case. Ward therefore seeks relief from strict compliance with the one-year rule of 52-577a(b) by virtue of its lack of dilatory or culpable behavior under the unusual facts set forth above.
A threshold consideration in deciding this motion is whether the statute of limitations argument it makes can properly be made by way of a motion to dismiss. The defendant contends that this defense must be raised by special defense as the time limitation set forth in § 52-577a(b) is procedural in nature and may not therefore be the basis for a motion to dismiss. The court disagrees with that assertion on the ground that the statute in question implicates whether the court can exercise personal jurisdiction over the putative third-party defendant. A failure to comply with this requirement is therefore appropriately raised by way of a motion to dismiss. See, e.g., Garrity v. First and Last Tavern, Inc., Superior Court, judicial district of Middlesex, Docket No. CV-10-6002820-S (April 10, 2012, Holzberg, J.) (53 Conn. L. Rptr. 771, 2012 Conn. Super. LEXIS 994), citing Barringer v. Whole Foods Market, Inc., Superior Court, judicial district of Hartford, Docket No. CV-09-6005918-S (July 14, 2011, Sheldon, J.) (52 Conn. L. Rptr. 410, 2011 Conn. Super. LEXIS 1858), and Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 848 A.2d 418 (2004).
While no appellate authority has been found on the specific question of whether noncompliance with the one-year limitation can ever be excused, the Supreme Court's unanimous ruling in Pedro v. Miller, 281 Conn. 112, ...