United States Court of Appeals

Fifth Circuit

FILED

April 17, 2006

Charles R. Fulbruge III

Clerk

In the

United States Court of Appeals

for the Fifth Circuit

_______________

m 05-20219

_______________

MARK NEWBY, ET AL.,

Plaintiffs,

VERSUS

ENRON CORPORATION, ET AL.,

Defendants.

* * * * * * * * * * * * * * *

CONNECTICUT RESOURCES RECOVERY AUTHORITY,

Plaintiff-Appellee,

VERSUS

MURTHA CULLINA LLP, ET AL.,

Defendants,

HAWKINS, DELAFIELD & WOOD,

Defendant-Appellant.
2

_________________________

Appeal from the United States District Court

for the Southern District of Texas

______________________________

Before JOLLY, SMITH, and GARZA, 

Circuit Judges.

JERRY E. SMITH, Circuit Judge:

The law firm of Hawkins, Delafield &

Wood (“Hawkins”) appeals an order of remand to state court. Finding no error, we

affirm.

I.

In late 2000, the Connecticut Resources

Recovery Authority (“CRRA”) agreed to pay

Enron Corporation (“Enron”) $220 million in

exchange for Enron’s promise to make a series

of payments to CRRA for power to be produced by CRRA over the next eleven years.

Hawkins represented CRRA in the negotiations. Enron stopped making payments when

it entered bankruptcy in December 2001, at

which time CRRA was still owed approximately $200 million.

In 2002, CRRA filed two lawsuits in Connecticut state court seeking recovery of that

sum. One suit named a litany of Enron-related

defendants; the other alleged legalmalpractice

against the attorneys who had represented

CRRA, including Hawkins. According to

CRRA, Hawkinsissued a legal opinion stating

that CRRA had the statutory authorityto enter

into the deal, that the deal did not threaten

CRRA’s tax exempt status, and that CRRA’s

bondholders did not need to consent to the

deal. All of this, alleges CRRA, was false.

While both suits were pending in state

court, Hawkins used aConnecticut procedural

device known as an “apportionment complaint” to bring some of the Enron-related defendants(“the apportionment defendants”) into the lawsuit against Hawkins. An apportionment complaint impleads new defendants and

allows the court to divide the plaintiff’s damages among multiple defendants based on the

extent to which each defendant’s negligence

caused the damages. After being made parties

to the malpractice suit, the apportionment defendants removed the case to federal court as

a matter related to the Enron bankruptcy. Because of the connection to Enron-related matters, the case wastransferred from the District

of Connecticut to the Southern District of

Texas.

The district court accepted jurisdiction of

the malpractice suit in its post-apportionment

form. The court found, and we agree, that the

inclusion of the apportionment defendants in

the malpractice suit isthe sole source of federal jurisdiction over the malpractice suit.

CRRA moved to strike Hawkins’s apportionment complaint for failure to state a claim under Connecticut law, and the district court

granted the motion, thereby removing the apportionment defendants from the malpractice

suit. 

Because removal of the apportionment defendants destroyed the basis for federal jurisdiction, the district court remanded the mal-
3

practice suit to state court. Hawkins argues

on appeal that the court erred in striking the

apportionment complaint and that the case

should be allowed to continue in federal court

with the apportionment defendants in tow.

II.

The remand order relies on the district

court’s interpretation of the Connecticut law

on apportionment. We review a district

court’s interpretation of state law de novo.

See Hart v. Bayer Corp., 199 F.3d 239, 243

(5th Cir. 2000). 

In Connecticut, a motion to strike a complaint admits well-pleaded facts and implications therefrom as true but does not admit legal conclusions or the truth or accuracy of

opinions stated in the pleadings. Emerick v.

Kuhn, 737 A.2d 456, 461 (Conn. App. 1999).

The court should grant a motion to strike only

if it asserts conclusions of law that the facts

alleged do not support. Mora v. Aetna Life &

Cas. Ins. Co., 535 A.2d 390, 392 (Conn. App.

1988).

CRRA arguesthat the apportionment complaint is legally insufficient because, on its

face, it does not meet the requirements of

Connecticut law. Apportionment complaints

are specifically authorized by Connecticut

General Statutes §§ 52-102b and 52-572h.

Section 52-572h establishes a system of

comparative negligence whereby defendants

are entitled to have damages apportioned

among all parties whose negligence contributed to the plaintiff’sinjury. The statute limits

this comparative negligence regime to negligence actions involving “personal injury,

wrongful death or damage to property.”

CONN. GEN. STAT. § 52-572h(b). Section 52-

572h thus creates a right of apportionment in

certain cases. Section 52-102b outlines the

procedures used to file an apportionment complaint. See Lostritto v. Cmty. Action Agency,

848 A.2d 418, 427 (Conn. 2004).

The parties agree on appeal that Hawkins’s

apportionment complaint is not proper under

§§ 52-572h and 52-102b. Because the underlying legal malpractice suit does not involve

personal injury, wrongful death, or damage to

property, the statutory right to apportionment

isinapplicable. Hawkins argues, however, that

Connecticut common law establishes an extra-statutory right to file an apportionment

claim in negligence cases that do not involve

personal injury, wrongful death, or damage to

property.

The district court held that the common law

of Connecticut does not create such a right.

The court also struck the apportionment complaint on two other grounds. 

First, the underlying suit alleges legal malpractice, and § 52-572h forbids apportionment

in breach of fiduciary duty claims. Second, by

bringing Enron defendants into the case, the

apportionment complaint resulted in a mixture

of negligence and intentional tort claims,

which is forbidden under Connecticut apportionment law. Each of these grounds is sufficient to defeat the apportionment complaint,

so Hawkins must overcome all of them to prevail on appeal. If the apportionment complaint

fails, it follows that the remand order is proper, because inclusion of the apportionment

defendants is the sole basis of federal jurisdiction.

III.

Hawkins contendsthat, as a matter of Connecticut law, a common law right to file an apportionment complaint in negligence cases not
4

involving personal injury, wrongful death, or

property damage was recognized in Williams

Ford, Inc. v. Hartford Courant Co., 657 A.2d

212 (Conn. 1995). Williams Ford eliminated

the contributory negligence defense in negligence cases not already covered by § 52-572h,

replacing it with a comparative negligence

scheme that assignsfault between plaintiff and

defendant. The stated objective in so holding

was to “assure that the body of the lawSSboth

common and statutorySSremains coherent and

consistent.” Williams Ford, 657 A.2d at 225

(internal quotations omitted). 

Williams Ford nowhere mentions apportionment or any similar concept. Hawkins argues, however, that because Williams Ford

extended the comparative negligence regime to

all negligence cases, it follows that the related

right of apportionment waslikewise extended,

via the common law, to negligence cases not

covered by § 52-572h. 

The Connecticut courts since Williams

Ford have not read the case to stand for that

proposition. Only one unpublished trial court

opinion supports Hawkins’stheory. See Vona

v. Lerner, 1998 WL 437337, at *2 (Conn. Super. 1998). The majority of Connecticut decisions, including more persuasive appellate

authority, have not recognized any link between Williams Ford and apportionment.

Connecticut courts typically refuse to allow

apportionment claims in legal malpractice actions such as the one here, because legal malpractice claims do not meet the § 52-572h requirement that personal injury, wrongful death,

or property damage be alleged.1

Thus for the majority of Connecticut

courts, the fact that legal malpractice actions

plainly fall outside the bounds of § 52-572h

has been the dispositive factor in rejecting apportionment claims in such cases. Hawkins’s

theory of the common law apportionment

claim is unsupported by the bulk of state law

authority. We agree with the district court

that there is no right to file a common law

apportionment claim in Connecticut.2

IV.

The district court struck the apportionment

complaint also because § 52-572h states that

1

See, e.g., Carpenter v. Law Offices of Dressler & Assocs., LLC, 858 A.2d 820, 823-24 (Conn.

App.) (holding that in a legal malpractice case,

(continued...)

1

(...continued)

“the court lacked subject matter jurisdiction over

the apportionment action because § 52-102b(a)

limits apportionment to . . . ‘causes of action based

on negligence . . . to recover damages resulting

from personal injury, wrongful death or damage to

property’”), cert. denied, 863 A.2d 700 (Conn.

2004). See also Gauthier v. Kearns, 2000 WL

727185, at *4-*5 (Conn. Super. 2000) (holding

that the availability of an apportionment claim in a

legal malpractice action depends on whether such

a claim alleges personal injury, wrongful death, or

property damage); Shevlin v. Shafran, 2001 WL

1468629, at *3 (Conn. Super. 2001) (reasoning

that “the plaintiff claims only economic loss and

not physical damage to or loss of use of property,”

apportionment was unavailable in a legal malpractice case); Anderson v. Bitondo, 1998 WL

279810, at *1 (Conn. Super. 1998)(explaining that

“[s]ince the claims for which apportionment is

sought are not within the scope of the apportionment statute, the motion to strike all counts of the

apportionment complaint is granted”).

2 Hawkins’ apportionment complaint was explicitly filed under §§ 52-572h and 52-102b, not

under a common law theory. Hawkins apparently

urged the common law basisfor its claim only after

discovering that the statutes bar apportionment in

legal malpractice cases.
5

“[t]his section shall not apply to breaches of

trust or of other fiduciary obligation.” CONN.

GEN. STAT. § 52-572h(k). Connecticut caselaw indicates that legal malpractice claims

qualify as breach of fiduciary duty claims for

purposes of the statute. See Andrews v. Gorby, 675 A.2d 449, 453 (Conn. 1996) (citing

Matza v. Matza, 627 A.2d 414, 423-24 (Conn.

1993).3 Hawkins makes no meaningful objection to the notion that its apportionment claim

runs afoul of § 52-572h(k). Because the underlying legal malpractice claim is properly

characterized as a claim for breach offiduciary

obligation, the district court correctly determined that apportionment is not appropriate.

V.

The district court’sfinal justification is that

the incorporation of the apportionment complaint into the case resulted in the co-mingling

of negligence and non-negligence claims,

which is prohibited by statute. Section

52-572h(o) states that “there shall be no apportionment of liability or damages between

parties liable for negligence and parties liable

on any basis other than negligence.” 

CRRA alleged both negligence and nonnegligence claims against the apportionment

defendants, but Hawkins arguesthat its apportionment complaint incorporates only the negligence claims. A plain reading of the apportionment complaint, however, does not support this contention. 

Nowhere doesthe apportionment complaint

state that Hawkins disavows the intentional

tort claims against the apportionment defendants or that it is incorporating only the negligence claims. The complaint mentions

CRRA’s Enron-related lawsuit a number of

times, and it is never evident that Hawkins

wished to incorporate only some of the claims

from that suit. The apportionment complaint

is vague as to exactly what it alleges, and the

district court was correct to reject Hawkins’s

contentionthat its complaint incorporated only

negligence claims. 

Moreover, the apportionment complaint

specifically incorporates allegations of aiding

and abetting against the apportionment defendants. As the district court noted, aiding and

abetting liability arises from an active awareness of the tortious conduct of the principal

actor and does not sound in negligence.4

Thus, by the complaint’s own terms, the apportionment defendants are “parties liable on

any basis other than negligence.” 

Hawkins offers no response to this point on

appeal. Accordingly, § 52-572h(o) forbids

Hawkins’s attempt to bring the apportionment

defendants into the legal malpractice suit.5

3

See also Whitaker v. Erdos & Maddox, 2000

WL 1862127, at *4 (Conn Super. 2000) (holding

that apportionment was unavailable for a legal

malpractice claim because by definition the claim

involved a breach offiduciary obligations); Shevlin

v. Shafran, 2001 WL 1468629, at *3 (Conn.

Super. 2001).

4 The district court also noted that CRRA’s

original complaint against Hawkins alleges breach

of contract as well as negligence. Hawkins is

therefore potentially liable for both negligent and

non-negligent activity. Because Hawkins is “liable

on any basis other than negligence,” apportionment

is not appropriate under § 52-572h(o). Hawkins

makes no response to this point on appeal.

5 Hawkins contends that even if its apportionment complaint is improper because it makes

non-negligence allegations, the remedy is not to

strike the entire complaint but to strike only the

(continued...)
6

For the foregoing reasons, the district court

did not err in striking Hawkins’s apportionment complaint, and the remand order was

proper. The judgment is AFFIRMED.

5

(...continued)

improper portions of it. Even assuming that this

were possible given the nature of the allegations,

Hawkins cites no authority indicating that such a

remedy is appropriate. In any event, Hawkins did

not suggest such a remedy to the district court.