Opinion
No. CV07 5012183
September 12, 2008
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT
The defendant has moved for summary judgment on the grounds that there is no genuine issue of material fact that the plaintiff's action is barred by the two-year statute of limitations for negligence actions provided by General Statutes § 52-584. The plaintiff opposes the motion for summary judgment arguing that the plaintiff timely commenced the present matter pursuant to Connecticut's accidental failure of suit statute, General Statutes § 52-592.
This action arises from a motor vehicle accident between the parties on September 28, 2005, which occurred in Carmel, New York. The plaintiff claims the defendant was negligent and that said negligence caused the plaintiff to suffer injuries and damages.
The plaintiff originally brought an action against the defendant Earlington Harris, Jr. and Gilbert Harris in the judicial district of Danbury on May 24, 2006, bearing Docket No. DBD-CV06 5000899 S ("Danbury action"). Thereafter, the court acting by Downey, J. dismissed the plaintiff's complaint on both subject matter and personal jurisdiction grounds on September 4, 2007. The court found that Earlington Harris, Jr. was not a resident of Connecticut at the time of the incident and was, in fact, a resident of New York at that time despite having a Connecticut motor vehicle operator's license. The court concluded that there were insufficient contacts with Connecticut; the accident did not occur in Connecticut; and service was made upon the former address of the defendant in Connecticut at a time when the defendant's actual address was in New York, where the defendant was a resident.
According to the plaintiff, Gilbert Harris is the brother of the defendant Earlington Harris. Gilbert Harris was the owner of the vehicle being operated by Earlington Harris. Gilbert Harris is not a named defendant in this present action.
No written memorandum of decision was filed by the court. However, a copy of the court transcript of the proceedings has been provided.
The present action was instituted by way of a complaint dated November 5, 2007, bearing a return date of December 4, 2007. The return of service filed by the state marshal states that the defendant Earlington Harris was personally served at his place of employment in Danbury, Connecticut on November 19, 2007. The complaint contains one count alleging negligence. The complaint does not contain any reference to being instituted pursuant to General Statutes § 52-592, the accidental failure of suit statute.
I Standard of Law
"A Motion for Summary Judgment is designed to eliminate the delay and expense of litigating an issue where there is no real issue to be tried." Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the non-moving party." Hertz Corp. v. Federal Ins., Co., 245 Conn. 374, 381, 713 A.2d 820 (1998). In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any issues exist. Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). The moving party has the burden of demonstrating the absence of any genuine issue of material fact. Hertz Corp. v. Federal Ins. Corp., supra, 245 Conn. 381. "The opposing party must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." Id. "A material fact is a fact which will make a difference in the result of a case." Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 639 A.2d 507 (1994).
"Summary judgment may be granted where the claim is barred by the statute of limitations." Doty v. Mucci, 238 Conn. 800, 806 (1996). Summary judgment is appropriate on statute of limitation grounds when the "material facts concerning the statute of limitations [are] not in dispute"; Burns v. Hartford Hospital, 192 Conn. 451, 452 (1984); and "is proper where the affidavits do not set forth circumstances which would serve to avoid or impede the normal application of the particular limitations period." Collum v. Chapin, 40 Conn.App. 449, 453 (1996).
II Pleading General Statutes § 52-592
The defendant argues that the plaintiff should not be able to assert that his action is saved by the accidental failure of suit statute, General Statutes § 52-592 because the plaintiff did not allege the statute in his complaint, nor did he plead the statute in his reply to the defendant's answer and the defendant's special defense that the action was barred by the statute of limitations set forth in General Statutes § 52-584.
Sec. 52-592(a) reads in relevant part as follows:
(a) If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits because of insufficient service or return of the writ due to unavoidable accident or the default or neglect of the officer to whom it was committed, or because the action has been dismissed for want of jurisdiction, . . . may commence a new action, except as provided in subsection (b) of this section, for the same cause at any time within one year after the determination of the original action or after the reversal of the judgment.
Sec. 52-584. Limitation of action for injury to person or property caused by negligence, misconduct or malpractice reads as follows:
No action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct, or by malpractice of a physician, surgeon, dentist, podiatrist, chiropractor, hospital or sanatorium, shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of, except that a counterclaim may be interposed in any such action any time before the pleadings in such action are finally closed.
The plaintiff relying on Ross Realty Corp. v. Surkis, 163 Conn. 388, 392, 311 A.2d 74 (1972) and more recently, McKeever v. Fiore, 78 Conn.App. 783, 795-96, 829 A.2d 846 (2003) argues that there is no requirement that the plaintiff plead sufficient facts necessary to bring the matter within the purview of § 52-592, either in the complaint or in a reply to a defendant's special defense of the statute of limitations. "While it has been suggested that it might be desirable for the plaintiff to plead sufficient facts necessary to bring the matter within the purview of § 52-592 . . . [our Supreme Court] has never held this to be a requirement . . . It has been and is the holding of [our Supreme Court] that matters in avoidance of the Statute of Limitations need not be pleaded in the complaint but only in response to such a defense properly raised." McKeever v. Fiore, supra, 78 Conn.App. 795-96, citing Ross Realty Corp. v. Surkis, supra, 163 Conn. 392.
The decisions in McKeever, supra and Ross Realty Corp, supra, indicate the plaintiff's reasoning is in error, and he is required to plead § 52-592 in response to a special defense of statute of limitations. Nonetheless, the plaintiff argues that judges of the superior court have held otherwise. See. Parkes v. Patson's Confectionary Corp., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV92-299236 S (Jan. 20, 1995) 14 Conn. L. Rptr. 201 (amended complaint allowed alleging § 52-592); Maythem v. Winer, Superior Court, judicial district of Waterbury, Docket No. 112053 (June 7, 1994, Sullivan, J.) (amended complaint allowed at trial to cite § 52-592).
In Gulycz v. Sandpiper Dunes, Superior Court, judicial district of Hartford-New Britain, at Hartford No. 372553 (Jun. 3, 1993, Wagner, J.) 9 Conn. L. Rptr. 216, the court, in denying summary judgment stated:
It is clear that plaintiff was not required to plead the statute in its present complaint. However, it would have been proper and desirable for him to plead the statute in his reply to the defendant's special defense raising the statute of limitations claim, which he did not do. Nevertheless, we conclude that there remains an issue of material fact as to when this action was started and, accordingly, defendant's motion for summary judgment is denied.
(Emphasis added) Id.
In each superior court decision cited by the plaintiff, the courts have recognized the necessity of the plaintiff pleading a reliance on § 52-592. The superior court cases relied upon by the plaintiff are distinguishable from the present case, as the plaintiff has not moved to amend his complaint or reply to the special defense to raise the issue of the applicability of § 52-592, as directed by our Supreme Court and Appellate Court in Ross Realty Corp. v. Surkis, supra, 163 Conn. 392 and McKeever v. Fiore, supra, 78 Conn.App. 795-96, respectively.
The court must, however, also consider Spears v. Garcia, 66 Conn.App. 669, 676, 785 A.2d 1181 (2001), aff'd, 263 Conn. 22, 818 A.2d 37 (2003), which holds when a claim is made in a complaint is grounded on a statute, the failure to cite the statute in the complaint does not bar recovery, as long as, the defendant is sufficiently apprised of the applicable statute during the proceedings. In Spears, the applicable statute which had not been pleaded in the complaint was first raised by the plaintiff in responding to a motion for summary judgment filed by the defendant who had filed a statute of limitations defense. The court in Spears v. Garcia, supra, reasoned that while the plaintiffs failed to plead the applicable statute in their complaint, they did rely on the relevant statute in their memorandum of law in opposition to the motion for summary judgment and mentioned the statute in oral argument before the court. Id., 676. The Spears court determined that these actions by the plaintiffs sufficiently apprised the defendants that the plaintiffs were relying on the relevant statute to bring their claim. "Under the circumstances of this case, the defendants cannot complain of unfair surprise." Id., see also Rocco v. Garrison, 268 Conn. 541, 557-59, 848 A.2d 352 (2004), quoting, Spears v. Garcia, supra, 66 Conn.App. 676, ("As long as the defendant is sufficiently apprised of the nature of the action . . . the failure to comply with the directive of Practice Book § 10-3(a) will not bar recovery").
In the present matter, the plaintiff has sufficiently apprised the defendant of his reliance upon our accidental failure of suit statute, General Statutes § 52-592. The plaintiff informed the defendant, as such, in his objection to the motion for summary judgment and his accompanying memorandum of law. Oral argument on the motion was also heard by the court on June 16, 2008 regarding this issue. The possibility of the plaintiff's utilization of § 52-592 in re-instituting his action was also raised by the court (Downey, J.) at the time the court dismissed the plaintiff's initial action in the Danbury superior court on September 4, 2007. The defendant in the present matter, therefore cannot complain of unfair surprise or prejudice. In addition, at Danbury the plaintiff advised the defendant and the court (Downey, J.) in his Supplemental Memorandum of Law in Opposition to the [defendant's] Motion to Dismiss that a dismissal of the action "would trigger the accidental failure of suit statute."
See Baldino v. Harris, supra, Superior Court, judicial district of Danbury, Docket No. DBD-CV06 5000899 S, transcript of proceedings (T.15) dated September 4, 2007.
Additionally, the plaintiff advised the defendant and the court in his Supplemental Memorandum of Law in Opposition to the [defendant's] Motion to Dismiss filed in Danbury that a dismissal of the action "would trigger the accidental failure of suit statute."
III Commencement of Action for Purposes of § 52-592
The defendant additionally argues that even if the plaintiff is allowed to assert § 52-592, summary judgment should be granted because there is no genuine issue of material fact that the Danbury action was never commenced against the defendant within the two-year statute of limitations set forth in General Statutes § 52-584 because the defendant was not properly served within two years of the accident. Therefore, § 52-592 is not applicable because it requires that the initial action that was dismissed be commenced within two years.
"[T]he term `commenced,' as used in § 52-592 to describe an initial action that "has failed to be tried on its merits because of insufficient service"; General Statutes § 52-592(a); cannot be construed to mean good, complete and sufficient service of process, as the defendant contends." Rocco v. Garrison, supra, 268 Conn. 551. Rather, "the original action was commenced within the meaning of the savings statute when the defendant received effective notice of that action within the time period prescribed by § 52-584." (Internal quotation marks omitted.) Id., at 552. "[T]he plaintiffs' original action was commenced, for purposes of the savings statute, when the defendant received actual notice of the action within the time period prescribed by the statute of limitations." Id.
There is no doubt that the defendant received actual notice of the plaintiff's initial action prior to the expiration of the initial two-year statute of limitations. The initial action was commenced by way of a complaint dated May 12, 2006 bearing a return date of June 13, 2006, less than one year following the incident in Carmel, New York, which occurred on September 28, 2005. By order of the court, (Mintz, J.), the defendant was deposed at the Danbury Superior Court on June 1, 2007, regarding the subject motor vehicle accident. The defendant filed answers to the plaintiff's interrogatories in the Danbury superior court on July 20, 2007. The defendant's motion to dismiss the Danbury action is dated August 18, 2006. The dismissal of the Danbury action was ordered by Judge Downey on September 4, 2007 after oral argument on said motion. Each of these events occurred within two years of the motor vehicle accident. Although the court (Downey, J.) found that the plaintiff did not make proper service upon the defendant in the initial Danbury action, the defendant received clear and unmistakable notice of that action and that another action would be forthcoming pursuant to the accidental failure of suit statute, General Statutes § 52-592.
If the savings statute requires effective commencement of the original action, and commencement requires valid service of process, as the defendant argues, then any failure of service of process would require us to conclude that no action had been commenced and that the statute does not apply. This would render superfluous one of the principal purposes of the savings statute, namely, to save those actions that have failed due to insufficient service of process. Moreover, the language of § 52-592 distinguishes between the commencement of an action and insufficient service of process by providing that the action may fail following its commencement because of insufficient service. To accept the view that improper or insufficient service defeats such an action would undermine the statute's clear and unambiguous meaning and preclude the filing of a second action. We therefore conclude that the term commenced, as used in § 52-592 to describe an initial action that has failed . . . to be tried on its merits because of insufficient service; General Statutes § 52-592(a); cannot be construed to mean good, complete and sufficient service of process, as the defendant contends.
Rocco v. Garrison, supra, 268 Conn. 550-51.
Order
For the reasons set forth herein, the motion for summary judgment is hereby denied.
CT Page 14931