Bhinder v. Sun Co.

BORDEN, J., with whom CALLAHAN, C. J.,

joins, dissenting. I agree with the majority that General Statutes § 52-572h does not contemplate apportionment of liability between a negligent defendant and a person whose conduct was either reckless or intentional. I disagree with the majority, however, that this is an appropriate case for employment of the jurisprudential technique of using the statute as a source of common-law adjudication. I therefore disagree that the criminal assailant, Raul Garcia, Jr., may be cited in as an apportionment defendant, and I respectfully dissent.

For all of the reasons so persuasively marshaled by the majority, it is clear that the apportionment provision of § 52-572h applies only to those persons who were negligent, and not to those who were recklessly or intentionally tortious. By the same reasoning, however, in my view, it is also clear that the specific legislative allowance of allocation with respect to negligent persons precludes allocation, as a matter of common law, with respect to reckless or intentional tortfeasors.

*244“[I]n interpreting statutes we have on occasion read specific statutory references to indicate a legislative intent to exclude, by implication, other related potential referents. . . . [Where] the explicit language or the legislative history of [the statute indicates] such a legislative intent, we [are] required to respect that implication, and we [are] precluded from reaching a result by way of common law adjudication that [is] contrary to that intent.” (Citation omitted; internal quotation marks omitted.) Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 584, 657 A.2d 212 (1995). As the majority makes clear, when the legislature provided for impleading persons who might have been negligent but who had not been pursued by the plaintiff, it “focused on the protection of insurable interests, which ordinarily do not encompass intentional conduct.” Contrary to the majority, I conclude that in light of the legislative history and purpose of § 52-572h, it would be inappropriate to extend the policy of the statute to cover what are ordinarily uninsurable interests, namely, perpetrators of recklessly or intentionally tortious conduct. To do so would be inconsistent with the legislative policy of the statute by affording more protection to the allegedly negligent named defendant than the statutory scheme was designed to afford.

The purpose of this aspect of tort reform, as the majority explains, was to ameliorate the common-law rule of joint and several liability, pursuant to which one insured party was liable for the entire judgment at the option of the claimant. Thus, under the apportionment provision of the statute, the defendant who is sued can implead another potentially negligent defendant so as to permit an equitable sharing of liability between them. Furthermore, as the majority explains, this apportionment scheme was aimed at protecting what are ordinarily insurable interests, on the theory that, in the main, negligence claims are protected by insurance. *245Thus, under this scheme — again, in the main — defendants would be liable to pay only their fair share of the judgments, and injured plaintiffs ordinarily would not be impacted by the allocation of a portion of the damages to uninsured defendants. This theoretical construct underlies the majority’s conclusion that the statute cannot be read plausibly to include reckless or intentional conduct as impleadable interests, because they are ordinarily uninsured interests.

It also compels the conclusion, in my view, that the court should not in this instance extend the statute beyond its boundary. “[E]very statute has some boundaries, and the question then arises whether, and when, it is appropriate to apply the statute, as a matter of common law, beyond its designated boundaries.” (Internal quotation marks omitted.) Id., 585. By applying the statute’s apportionment policy beyond its boundary of negligence, the majority permits the defendant to do more than share its liability with another tortfeasor. In effect, it permits the defendant to shift most, if not virtually all, of its liability to that tortfeasor. Any jury that takes the court’s instructions and its own duty seriously will inevitably conclude that the fault for the death of the plaintiffs decedent lies mostly, if not virtually completely, with the intentional tortfeasor, Garcia. Moreover, in most future cases in which an intentional — and uninsured — tortfeasor is cited in as an apportionment defendant, the likely outcome will be similar: the negligent and insured defendant will end up with responsibility for only a veiy small percentage of the judgment. This is not what the legislature intended when it enacted the apportionment provision of § 52-572h. It is contrary to that intent.

I acknowledge that my reasoning would result in what could be considered an anomaly in the law. Under my interpretation of the legislative policy, a party cited in who the defendant alleges was negligent could escape *246apportionment by persuading the jury that his conduct was not negligent but worse — it was either reckless or intentional. I think, however, that is the necessary result of the ultimate legislative choice among the competing interests that yielded this particular part of tort reform.

I also disagree with the majority’s engrafting onto its common-law adjudication the reallocation provision of the statute. See footnote 12 of the majority opinion. That is a statutory provision that concerns only the question of the collectibility of the ultimate judgment. In fashioning rules of liability under our common-law powers, courts do not ordinarily fashion mechanisms for the collectibility of the ultimate judgments. Such matters — which include hens, attachments and the like — are ordinarily matters for the legislature. Courts go too far in what can be a useful adjudicative technique of using a statute as a source of common-law adjudication when they start legislating. I believe that is what the majority has done in footnote 12 of its opinion.

I would, therefore, leave the defendant’s liability to the ordinary common-law rules, without the benefit of apportionment with the criminal assailant in the present case. Accordingly, I would affirm the judgment of the trial court.