Free Reply to Response to Motion - District Court of Connecticut - Connecticut

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Case 3:03-cv-00597-IVIRK Document 112-3 Filed 12/07/2004 Page 1 of 4
Khadijah Frances et al. v. Omni Insurance C0.
2001 Conn. Super. LEXIS 3492
December 11, 2001, Decided
December 11, 2001, Filed
NOTICE: [*1] THIS DECISION IS UNREPORTED they were struck by another vehicle. The driver of the
AND MAY BE SUBJECT TO FURTHER APPELLATE other vehicle fled the scene. Further, the plaintiffs allege
REVIEW. COUNSEL IS CAUTIONED TO MAKE AN that Francis's vehicle was insured by Omni and that the
INDEPENDENT DETERMINATION OF THE policy was in full force and effect as of the date of the
LexisNexis(R) Headnotes On August 10, 2000, Onmi filed its answer and special
defenses (# 103) and a motion for permission to implead
third-party defendants (# 105). In its motion to implead,
JUDGES: Daniel E. Brennan, Jr., J. Omni alleges that either National Kidney Foundation or
Superior Auto Sales owned the other vehicle that was
OPINIONBY: Brennan involved in the accident with the plaintiffs. On
September 29, 2000, the couit, Moran, J., granted Omni's
OPINION: MEMORANDUM OF DECISION RE motion. On October 27, 2000, Omni filed a third-party
MOTION FOR SUMMARY JUDGMENT # 125 AND complaint (# 114) against National Kidney Foundation
SUPPLEMENTAL MOTION FOR SUMMARY and Superior Auto Sales. In its third-party complaint,
JUDGMENT # 137 Omni seeks indemnification of any judgment rendered
against it and in favor of the plaintiffs; and
The court must determine whether National Kidney reimbursement for costs and expenses, and attorneys fees
Foundation's motions for summary judgment as to the incurred in defending the action. Process was served on
defendant's indemnification claim and plaintiffs' claims National Kidney Foundation on October 25, 2000, and
against it because these claims are time barred and there on Superior Auto Service on October 27, 2000. nl
are no genuine issues of material fact as to the possession National Kidney Foundation filed an appearance on
and ownership of the vehicle that allegedly caused the November 21, 2000. On December 4, 2000, the [*3]
plaintiffs' injuries. The court denies National Kidney plaintiffs filed a claim against third-party defendants (#
Foundation's motion for summary judgment as to the 120). In their claim, the plaintiffs assert that if National
defendant's indemnification claims and grants the motion Kidney Foundation is found liable to Omni in the
for summary judgment as to plaintiffs' claims against it. plaintiffs' action against Orrmi, National Kidney
Foundation should pay the plaintiffs its proportional
On June 14, 2000, the plaintiffs, Khadijah Francis and share ofthe damages.
Tamara Titre filed a two-count complaint (# 101) against
the d—i=f¤¤<*¤¤t Om Qompey · Tir ..t O. ttm. I5, ml, .1.. ..... .......
plaintiffs allege that they were injured in an automobile ., . . .
. . . . . Omni s motion to enter a default against Superior
accident on October 1, 1998, while Francis was driving A t S 1 f f .1 t
her vehicle and Titre was [*2] a passenger therein, and u O 8 cs Or al me O appcan

Case 3:03-cv-00597-IVIRK Document 112-3 Filed 12/07/2004 Page 2 of 4
Page 2
2001 Conn. Super. LEXIS 3492, *
"Surmnary judgment may be granted where the claim is
On February 2, 2001, in response to Omni‘s third-party barred by the statute of limitations." Doty v. Mucci, 238
complaint and the plaintiffs' claim against it, National Conn. 800, 806, 679 A.2d 945 (1996). Summary
Kidney Foundation filed a motion for summary judgment judgment [*6] is appropriate on statute of limitations
(# 125) and a memorandum in support of the motion for grounds when the "material facts concerning the statute
surmnary judgment (# 126). In its motion, National of limitations [are] not in dispute . . ." Burns v. Hary’ord
Kidney Foundation contends that there are no genuine Hospital, 192 Conn. 451, 452, 472 A.2d 1257 (1984).
issues of material fact and that its motion should be
granted because Omni's third-party complaint and the National Kidney Foundation asserts that there are no
plaintiffs' claim are barred by the applicable statute of genuine issues of material fact in dispute and that Omr1i's
limitations. On March 14, 2001, Omni filed its third-party complaint and the plaintiffs' claims against it
opposition to National Kidney Foundation‘s motion for were served after the two-year statute of limitations for
summary judgment [*4] (# 131). The plaintiffs, negligence claims found in General Statutes § 52-584
however, have not filed an opposition or objection to the had run. Omni argues in opposition that its claim against
motion. On July 30, 2001, National Kidney Foundation National Kidney Foundation is a claim of indemnity and
filed a supplemental motion for surrnnary judgment (# that the three—year statute of limitations period under
137) and a memorandum of law in support (# 138). In its General Statutes § 52-598a n2 applies rather than the
supplemental motion, National Kidney Foundation two-year period under General Statutes § 52-584.
asserts that it cannot be held liable to Omni because, at
the time of the accident, it did not own the vehicle that 112 S t. 52-598 .d . .
allegedly struck the plaintiffs' vehicle. On August 9, _ ,, cc lon d. a pmvl CS. in pcmnclit
2001, Omni filed a supplemental objection to the third- pg"} Notwlthflan Hifi; . tay P?)v1?.1OH of HES
party defendant's motion for summary judgment (# 140). grgs Q? `zghig S;] O m cgmlillig 10; tm}; the
In the supplemental objection, Omni asserts that there is d g . . f 8; ycari O . B abc O c
an issue of material fact as to what entity possessed the ctilmmiatmn 0. t Q acuml against t C Party
other vehicle at the time of the accident. The court heard Y“h‘°h ls Scckmg mficnmltlcauon by wher
. . judgment or settlement.
oral arguments on the motion during short calendar on
August 13, 2001. [*7]
"Summary judgment shall be rendered forthwith if the ., .... . .
pleadings, affidavits and any other proof submitted show Omni? acllcm aézlmst Naflqml IiKlnC";,FO.uIédat10p ls nl?
that there is no genuine issue as to any material fact and gn acm? H; img lgigcii t IS adcglm O; gl ennntn E;
tint tne ineting nejty in entitieti giintitinent ee ginettei 5§’§E`TZ LilLW°£1ZZti§E FEIS€m.E'éiQ?r0n’i'$”§EStil0ughi
$@5.1 gall §$LE$i€$$?S§lZ$idZL$ZTYiiZ l;hi“EZ§`§i Lgitnilnggilje g_;;gj1gnnnh;ne ltjggyei tinleijljteignnngggligleg
favorable to the nonmoving party . . . [*5] The party . . . . . ,,
seeking summary judgment has the burden of showing mdemmhcamm by wher dgmcm Or sculemcm
the absence of any genuine issue [of] material facts general Smtuigsel `l2_598a' Sl-lctmn 52l598a sets fgrth
which, under applicable principles of substantive law, Emi Sgigljidcgg lggtaggxilfzgfcggzgsinggéggiilngggtlgg
ggggcdogglgsiiéudfggnt gas lzgggfr gfugiw épogftid if brought within three years from the date of the
evidentiary foundation to demonstrate the existence of a ;i;;I;;?Eg§;§aigh;O:;1t&;; ailing? 11;; giiinlifnggggggg
genuine issue of material fact." (Citation omitted; . . . . .
internal quotation marks omitted.) Community Action for Fhg aclilon . agaglst plmy Whlch is Scekmg
Greater Middlesex County, Inc. v. American Alliance gl €inm5l;agg)8H y el; Cr Jllggmim Or scttlcmcm
ms. ca., 254 cam. 387, 397-98, 757 A.2d 1074 (2000). f€°t.‘°;1‘ it g°"p’°Sf Y ¥”°"‘ if that S °"‘“S‘? °f?‘°“°‘;
"A 'material’ fact has been defined adequately and simply tg; lnusgnilf €]H OCS E0 MISC im? abc Ctcitmmatlollg. O
as a fact which will make a difference in the result of the indcmnmiazof T? Onwhagams . dc pi y. Sec ini
case." (Intemal quotation marks omitted.) Hammer v. 1 .t . h` t;S’1 crc ag] m cgmly is agglf
Lumbermanls Mutual Casualty Co., 214 Conn. 573, 578, azizrtzingbiz sggérc "th;’S§ng;‘;;n;;‘;‘aca{1°I‘ifa‘;[1t;?n as
573 A.2d 699 (1990). Summa `ud ment "is a ro riate . ,, . . . . .
only if a fair and reasonable gzlrhongcould condiiideponly acuml [*8] SWING V' Philips Medical Systems 0fN0rth
one way." Miller v. United Technologies Corp., 233 America [nc" 46 Colm APF 699’ 7U’ 700 A‘2d 1179
COM. 732. 75], 660/4'2d8[0 (1995). (1997); see also DeSanti v. Shelton Square L.P., 1998
Conn. Super. LEXIS 2717, Superior Court, judicial
district of Fairfield at Bridgeport, Docket No. 338065

Case 3:03-cv-00597-IVIRK Document 112-3 Filed 12/07/2004 Page 3 of 4
Page 3
2001 Corm. Super. LEXIS 3492, *
(September 14, 1998) (Skolnick, J.) (22 Conn. L. Rptr. issue of material fact as to who owned the vehicle at the
65). time involved.
When "the underlying action has not yet been determined National Kidney Foundation also asserts that it is entitled
. . . the three-year statute of limitations imposed by the to summary judgment as to the plaintiffs' claim against it _
[statute] has not even started to run." Violette v. Dunkin' because there is no genuine issue of material fact that the
Ventures Corporation, 1995 Conn. Super. LEXIS 1035, plaintiffs filed this claim after the statute of` limitations
Superior Court, judicial district of Hartford-New Britain had run. " General Statutes § 52-584 is the statute of
at New Britain, Docket No. 459314 (April 5, 1995) limitations applicable in an action to recover damages for
(Handy, J .). Because the underlying action between the injury to the person or property caused by negligence . .
plaintiffs and Omni is still pending, the statutory period ." (lntemal quotation marks omitted.) Johnson v. North
for Omni‘s indemnification claim against National Branford, 64 Conn. App. 643, 648, 781 A.2d 346, cert.
Kidney Foundation has not begun to run. Thus, it is clear denied, [*11] 258 Conn. 926, 783 A.2d 1028 (2001).
that Omni‘s indemnification action is not barred by the General Statutes § 52-584 provides in relevant part: "No
statute of limitations. action to recover damages for injury to the person, or to
real or personal property, caused by negligence . . . shall
National Kidney Foundation also moves for summary be brought but within two years from the date when the
judgment as to Omni' s indemnification action on the injury is first sustained or discovered or in the exercise of
ground that there is no genuine issue of material fact that reasonable care should have been discovered, and except
it did not own possess or control the other vehicle that no such action may be brought more than three years
involved in the accident on October 1, 1998, the date of from the date of the act or omission complained of. . ."
[*9] the accident, and, therefore, it carmot be liable to
Omni for indemnification or contribution. In support of The plaintiffs allege that the negligent conduct in this
its argument, National Kidney Foundation submitted case took place on October 1, 1998. The plaintiffs filed
deposition testimony from its assistant vice president of their action against National Kidney Foundation on
auto placement, Joseph Hearn. (National Kidney December 4, 2000. Thus, this action was commenced
Foundation's Supplemental Memorandum # 138, Exhibit beyond the time period permitted by General Statutes §
C.) Heam testified that Superior Auto picked up the 52-584. The Appellate Court has stated that in this state,
vehicle from City Auto on September 20, 1998 and that as under federal law, under Rule 14(a) of the Federal
National Kidney Foundation issued a bill of sale on the Rules of Civil Procedure, "a plaintiffs amendment of a
vehicle to Superior Auto on September 14, 1998. complaint in order to bring a direct action against a third-
(National Kidney Foundation's Supplemental party defendant is treated as the filing of an original
Memorandum # 138, Exhibit C, p.21.) action by the plaintiff against the third-party defendant . .
. Consequently, [*12] the filing of a third-party
National Kidney Foundation also provided testimony complaint by the original Defendant does not toll the
from Nunio Xavier, president of Superior Auto, who rurming of the statute [of limitations] on a cause of action
stated that National Kidney Foundation never took between the Plaintiff and a third-party Defendant."
possession of the vehicle. (National Kidney Foundation's (Citation omitted; internal quotation marks omitted.)
Supplemental Memorandum # 138, Exhibit G, p. 11.) Vincent v. Litchfield Farms, Inc., 21 Conn. App. 524,
Omni, however, also provided the court with deposition 527-28, 574 A.2d 834, cert. denied, 215 Conn. 815, 576
testimony from Hearn. In this testimony, Heam indicates A.2d 545 (1990). Accordingly, because in this case, the
that he did not know when title to the vehicle was signed plaintiffs' claim against National Kidney Foundation was
over to Superior Auto. (Omni's Supplemental Objection not filed until after the statute of limitations had run, "the
# 140, Exhibit 2, p.55.) Thus, the court does not have plaintiffs' claims are time-barred and the court may grant
definitive evidence as to the ownership of the vehicle summary judgment." [cl. n3 There is no genuine issue of
[*10] at the time of the accident. Further, there is no material fact as to whether the plaint%v’claim
conclusive evidence as to who maintained possession
and control of the vehicle at the time ofthe accident. See D3 This COW, is full aware f th C f I
spam V. Allstate me ce., 44 cen". App. 53, 59, 686 h h I I . J . bf " l“"?”·
A.2d 533 (1996) (reversing trial court's decision to grant I wg VL mia ysls all eqmm e eva uatmns
summary judgment because there were genuine issues of noted by Rubma L In Lemp v` Tow? Of East
material fact as to who owned the vehicle at the time of Gnlnby 2000 Ct`Sup' HSO8 (2000% Whlch lcd to
. . . . a different result. The differences in the factual
alleged accident). The court denies National Kidney . . . . . .
Foundation's motion for sumrnar `ud ta to Omni‘s Fomixt mmgatc agamst a Lemp gmdccbdccmon
. . . . Y1 gm°“. S . this matter Further e difference inthe wium
action for indemnification because there is a genuine m . . ` ’ . . g
activism of the courts involved may explain the

Case 3:03-cv-00597-IVIRK Document 112-3 Filed 12/07/2004 Page 4 of 4
Page 4
2001 Conn. Super. LEXIS 3492, *
seemingly different results. This coun is If the legislature has some intent, beyond the high
unwilling to stretch the elastic to the extent that standard entitled "INJUSTICE" for waiver of the
equitable considerations can overcome the clearly time requirement, it is the body to address the
stated statutory time mandates in the case issue, not this court.
This court is persuaded that the statutory
provision would be expanded beyond the intent For the reasons stated above National Kidney
of the "injustice . . ." language was allowed to Foundation‘s motion for summary judgment should be
become a hiding spot for avoiding clear time denied as to Omni's indemniiication complaint and
limits. granted as to the plaintiffs' claim against it.
Daniel E. Brennan, Jr., J.