Buckingham v. Scheessele, No. 31 52 48 (Oct. 13, 1992) , 1992 Conn. Super. Ct. 9337 ( 1992 )

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION RE: MOTION TO STRIKE #113 The third party defendant Stone Construction Company, has moved to strike the first count of the third party complaint of the defendant, Anthony Scheesele, d/b/a, on the grounds that such count improperly seeks contribution from a joint tort-feasor prior to the entry of a judgment against that defendant. Essentially, the third party defendant maintains that Connecticut General Statutes 52-572h(g)(i) and 52-572h(i) permit a claim for contribution only after a final judgment has been rendered.

It appears, however, that the third party defendant misconstrues the thrust of the first count of the third party complaint. Section 52-572h(c) provides that in negligence actions resulting from occurrences 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 . . . damages. . . ." (emphasis added)

Thus, in order for any negligence on the part of the third party defendant to be considered in such allocation process, it must be a party. At this point, the first count of the third CT Page 9338 party complaint appears to have as its purpose the inclusion of the third party defendant as a party, so that any negligence on its part can be determined by the trier and the defendant would be then held liable for only its proportionate share as per52-572h(c). Accordingly, the first count of the third party complaint is not seeking contribution from the third party defendant in the sense claimed in the motion to strike.

Therefore, the motion to strike is denied.

BRUCE W. THOMPSON, JUDGE