Birkhamshaw v. Socha

156 Conn.App. 453

115 A.3d 1

Gary BIRKHAMSHAW, Administrator (Estate of George M. Upton, Jr.)

v.Joseph SOCHA et al.

No. 36058.

Appellate Court of Connecticut.

Argued Dec. 2, 2014.

Decided April 14, 2015.

Roman T. Galas, pro hac vice, with whom were Stephen P. McLaughlin, Andrew S. Turret and, on the brief, James H. Gordon, pro hac vice, for the appellants (defendants).

Kevin C. Ferry, New Britain, and Stephen M. Reck, North Stonington, for the appellees (plaintiffs).

DiPENTIMA, C.J., and MULLINS and WEST, Js.

Opinion

MULLINS, J.

This wrongful death case involves a tragic motor vehicle accident in which George M. Upton, Jr. (decedent) lost his life. The defendants, Joseph Socha and United Parcel Service, Inc. (UPS), appeal from the judgment of the trial court, accepting the jury's verdict and awarding damages to the plaintiffs, Gary Birkhamshaw, the administrator of the estate of the decedent, and Julie Upton (Upton), the wife of the decedent. The defendants claim that the court: (1) erred in denying their motion to dismiss Upton's claims for lack of subject matter jurisdiction on the ground that Upton did not have standing in this case, having never been named in a summons properly served on the defendants; (2) abused its discretion by denying their motion to preclude evidence of the decedent's driving practices; (3) abused its discretion by permitting the plaintiffs' expert witness, Lew Grill, to offer an opinion on accident reconstruction and on Socha's cell phone usage; (4) abused its discretion by precluding the testimony of the defendants' expert witness, Stephen B. Chewning; (5) abused its discretion by striking the testimony of the defendants' expert witness, Stephen Fenton; (6) abused its discretion in barring any reference during closing argument to an expert witness, Michael Cei, who was not called by the plaintiffs; and (7) erred as a matter of law by awarding interest and attorney's fees to the plaintiffs pursuant to General Statutes § 52–192a (c). We affirm the judgment of the trial court.

The following facts reasonably could have been found by the jury. At approximately 2:57 a.m. on November 23, 2010, Socha was driving a UPS tractor trailer truck in the right lane of Interstate 395 in Norwich. He was nearing the end of a twelve hour workday for UPS. As he approached exit 82, he was traveling approximately sixty-seven miles per hour as he drove around a left-hand curve and then down a straight downgrade in the interstate.

The decedent, who was driving his pickup truck, was on his way to work at Trimac Transportation, Inc., where he was a tanker truck driver. The decedent also was traveling in the right lane approaching exit 82, but at a much lower rate of speed, approximately fifty miles per hour.

As Socha drove around the left-hand curve, he and the decedent were approximately one quarter of a mile apart and approximately fifty-two seconds from impact. Socha, who did not see the decedent's pickup truck until it was too late to avoid it, hit it from behind, causing it to veer off the road, over the guardrail, through a light pole, and down an embankment. The decedent was ejected from the pickup truck and was killed.

Birkhamshaw filed a wrongful death action against the defendants sounding in negligence and recklessness. Before the statute of limitations ran on her loss of consortium claim, Upton was added as a plaintiff, and an amended complaint was filed that included loss of consortium claims also sounding in negligence and recklessness.

The jury found that Socha was 100 percent responsible for the accident and that he was both negligent and reckless. It awarded Birkhamshaw economic damages in the amount of $508,132, and noneconomic damages in the amount of $1,500,000. It also awarded Upton $1,875,000 on her loss of consortium claims. The jury declined, however, to award double or treble damages under General Statutes § 14–295.¹ This appeal followed. Additional facts will be set forth as necessary.

I

The defendants first claim that the court erred in denying their motion to dismiss Upton's claims for lack of subject matter jurisdiction. They argue that Upton did not have standing in this case because she was never named in a summons properly served on the defendants. They contend that, under our rules of practice, Upton was required to serve them with a new or amended summons in order to gain party status in the case. Additionally, they contend that the court also issued an order requiring that Upton be named in a summons and that the summons be issued to the defendants. They contend that the failure to do so deprived the court of subject matter jurisdiction over Upton's claim because, without the issuance of an amended summons, she never was made a party to the action.

The plaintiffs respond that “[t]he defendants were properly summoned to court, and they agreed to the form of the summons, and, even if they did not agree, it is clear that they waived any defect by not filing a motion to dismiss within [thirty] days.” They also argue that, “[i]f the defendants had their way, then the thousands of cases where parties were added by agreement of counsel, without a formal summons and complaint, should all be overturned for lack of jurisdiction. The defendant[s] cannot be rewarded by [lying] in wait.... The court's ruling was proper, as Julie Upton was a known party to everyone, including the court.” We agree that the court properly denied the defendants' motion to dismiss.

The following additional facts are relevant to this claim. On March 31, 2011, Birkhamshaw filed a motion to cite in Upton as a plaintiff and to amend his complaint to include claims for loss of consortium. ²

On April 19, 2011, the court granted the motion, which was unopposed, and the clerk's office issued the following order: “It appearing that the foregoing motion should be granted, it is hereby ordered that, on or before May 26, 2011, the plaintiff amend his complaint to state facts showing the interest of Julie Upton in this action and summon Julie Upton to appear as a defendant in this action on or before the second day following June 7, 2011, by causing some proper officer to serve on him in the manner prescribed by law a true and attested copy of this order, a true and attested or certified copy of the complaint in this action as amended, and a summons civil for JD–CV–1 and due return make.”³

On May 25, 2011, the defendants filed an answer with special defenses to the plaintiffs' amended complaint, including the new claims on behalf of Upton. On April 25, 2012, the plaintiff sought to file an amended complaint to add a cause of action for negligent supervision against UPS, and the defendants filed an objection to the amendment. The court overruled the objection, and, on June 29, 2012, the defendants filed a new answer with special defenses. On November 15, 2012, the plaintiffs again sought permission to file an amended complaint, this time removing the claim for negligent supervision against UPS, and, on January 13, 2013, the plaintiffs filed another request for leave to amend their complaint.

On January 22, 2013, after the jury was picked, the defendants filed a motion to dismiss Upton's loss of consortium claims. In their motion, the defendants claimed that the court lacked subject matter jurisdiction because (1) Birkhamshaw lacked standing to pursue Upton's claims, and (2) Upton was never properly made a party to the action because the defendants were never served with a summons that had Upton's name on it. The plaintiffs filed an objection on January 23, 2013, arguing that this was a matter of personal jurisdiction, not subject matter jurisdiction, and that the defendants had agreed to this procedure and had waived any objection by waiting years to raise the issue. That same day, the following order issued: “ORDER REGARDING: 01/22/2013 204.00 MOTION TO DISMISS. The foregoing, having been considered by the clerk, is hereby: ORDER[ED]: DENIED. Short Calendar Results Automated Mailing (SCRAM). Notice was sent on the underlying motion.”

Despite the issuance of this order on January 23, 2013, our review of the transcripts in this case reveals that the court heard argument on the defendants' motion to dismiss on both January 23 and 24, 2013, before ruling. The court repeatedly asked the defendants' counsel to explain why this was not a matter of personal jurisdiction, rather than subject matter jurisdiction. He explained that the “sole issue” was whether Upton was named on a summons properly served on the defendants because that was the only way for her to gain standing in the case. The court asked the defendants' counsel if he was suggesting that in the “many, many, many” cases where “counsel accept [s] service on behalf of a client,” that “those cases are somehow defective because the court lacks subject matter jurisdiction.” The defendants' counsel stated that he was not making such a suggestion. He stated, however, that “a person named in a complaint and even in the caption of a case is not a party plaintiff if he or she is not named and listed as a plaintiff on the summons served on the defendant. Service is not an issue because the summons doesn't list Julie Upton in the first place.” The court then questioned whether the defendants' counsel was arguing that “parties can't be added by consent.” He stated that they must “institute their civil action by being named on a summons. Otherwise they're not plaintiffs before the court.”

The plaintiffs' counsel responded that the letter he sent to the defendants' counsel with his motion to cite in Upton as a plaintiff and his amended complaint should be viewed as fulfilling any requirements of a summons, and that the defendants agreed to this procedure and waived any objection by not filing a timely objection or a timely motion to dismiss. He also asked the court to consider General Statutes § 52–123.⁴ The court opined that the filing of a responsive pleading gives the court personal jurisdiction...