DocketNumber: No. 0054001
Citation Numbers: 1992 Conn. Super. Ct. 6274
Judges: PICKETT, JUDGE
Filed Date: 6/30/1992
Status: Non-Precedential
Modified Date: 4/18/2021
On April 13, 1992, the plaintiff moved to strike the second and third special defenses on the grounds that the second special defense is not permitted by the CPLA, and the third special defense is not permissible because collateral source reduction occurs only after a verdict. The plaintiff attached to its motion a supporting memorandum.
On May 15, 1992, the defendant filed a memorandum in opposition to the motion to strike.
The motion so strike is provided for in Practice Book 151-158. A motion to strike tests the legal sufficiency of a pleading and "admits all facts well pleaded." Ferryman v. Groton,
In its memorandum in support of its motion to strike, the plaintiff contends that the defendant "cannot allege negligence, on the part of plaintiff's former employer, as a special defense because plaintiff's former employer, is not a party [to this action]." With regard to the third special defense, the plaintiff claims that collateral source payments should not be plead as a special defense. The defendant, in its opposing memorandum, rebuts these claims.
The legal sufficiency of a special defense may be determined by reference to Practice Book 164, which states that "[f]acts which are consistent with [the plaintiff's statement of fact] but which show, notwithstanding, that he has no cause of action, must be specially alleged." Practice Book 164. See also Grant v. Bassman,
The second special defense, as was noted, supra, states that the plaintiff's injuries were the result of the misuse, abuse and negligence of Wright in the latter's handling of the chainsaw. As was noted, supra, the plaintiff's complaint is brought, in part, pursuant to the CPLA, General Statutes
There is nothing in Conn. General Statutes
52-572n et seq. that prohibits a defendant from claiming that a person not a party to the proceedings caused the plaintiff's injuries. Courts cannot, by construction, read into legislation provisions which are not stated. . . . `It is not for us to search out some intent which we may believe the legislature actually had and give effect to it.' (Citations omitted.)
Rau, supra, See also Stefano v. Smith,
The Rau court further stated that "based upon the language of the products liability statute regarding comparative negligence. . .it would appear that the defendant can claim the employer's negligence." Rau, supra, 303, citing Clement v. Rousselle, 373 So.2d 1156, cert. denied
A claim that another person is the proximate cause of an injury should be introduced by a general denial and not pleaded as a special defense . . . .`A denial of a material fact places in dispute the existence of that fact. Even under a denial, a party generally may introduce affirmative existence of the disputed fact. . . . If, however, a party seeks the admission of evidence which is consistent with a prima facie case, but nevertheless would tend to destroy the cause of action, the "new matter" must be affirmatively pleaded as a special defense.' (Citations omitted.)
Rau, supra.
"Although the second special defense could be stricken on the basis that the matter should be proved under a general denial, [the] plaintiff has failed to assert this ground and therefore the court is limited to the grounds specified in the motion." Id. (Emphasis added.) See also Stefano, supra, 737; 65A C.J.S. Negligence 201(3) 432-33. In accordance with Rau, supra, this court denies the plaintiff's motion to strike the second special tense.
The third special defense, as was noted, supra, claims a Workers' Compensation set-off. This fact construed in the defendant's favor, fails to demonstrate that the plaintiff has no cause of action. See Daniels, supra. A collateral source reduction pursuant to General Statutes
Additionally, collateral source payments do not constitute a set-off. Air Flo, Inc. v. Consolidated Engineers and Constructors, Inc.,
[R]ights and liabilities as between the plaintiff and the defendant, and does not involve rights and liabilities as between a plaintiff or defendant and a third party. Because a claim for the reduction of damages based upon a plaintiff's receipt of collateral damages is premised upon transactions or occurrences not between the plaintiff and the defendants, but between the plaintiff and a third party, and because a collateral source reduction does not arise `independent of the action being sued upon,' a collateral source reduction is not a set-off. Therefore. . .a collateral reduction [need not] be specially pleaded.
Daniels, supra, 248.
Consequently, because this court holds that evidence of collateral source payments should not be introduced until a decision on the amount of damages has been made, the motion to strike the third special defense is granted. Zajac v. Bock,
In accordance with the foregoing, the motion to strike the second special defense is denied, and the motion to strike the third special defense is granted.
PICKETT, J.