Opinion
No. HHB-CV-05-4004560-S
April 5, 2006
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT ( #109)
By motion for summary judgment, filed on September 30, 2005, the defendant Beverly A. Sikora, as administratrix of the Estate of Charles McLaughlin (the decedent), seeks judgment as to the negligence claim made by the plaintiff, based on the contention that it is barred by the statute of limitations. Oral argument was heard by the court on February 27, 2006. For the reasons stated below, the court denies the motion.
I. BACKGROUND
In this matter, the plaintiff, Charlotte Natanzon, alleges in her complaint that, on January 31, 2003, she was injured when a motor vehicle owned and operated by the decedent struck the passenger's side door of the motor vehicle which the plaintiff was operating, resulting in the plaintiff's claimed personal injuries and damages.
The defendant's motion for summary judgment was accompanied by a memorandum of law, and copies of an officer's return and a check made payable to the clerk. The defendant argues that the plaintiff's claim is barred by General Statute §§ 52-584 and 45a-375, since she asserts that she was served with process on March 3, 2005, more than two years after the date of the claimed accident, January 31, 2003.
As discussed below, the copy of the officer's return which is attached to the defendant's motion states that service occurred on March 7, 2005, not March 3, 2005.
On October 25, 2005, the plaintiff filed her objection to the motion (#110), accompanied by a memorandum of law. She also submitted an affidavit of plaintiff's counsel; copies of a summons and complaint in the case of Natanzon v. McLaughlin, Superior Court, judicial district of New Britain at New Britain, Docket No. CV 05 4003287 S, which had a return date of January 18, 2005, and an officer's return in connection with that matter; a December 21, 2004 Burlington probate court order appointing Beverly A. Sikora as executrix of the decedent's estate; and a copy of a fax cover sheet, dated December 22, 2004, containing a message from plaintiff's counsel to a Jan Kunkiewicz.
Neither party contends that Sikora's appointment as executrix, as opposed to administratrix, has any bearing on this motion.
The undisputed facts reflect that the decedent died on October 9, 2004. The officer's return in Natanzon v. McLaughlin, supra, states that service was made therein, at the decedent's abode, on December 30, 2004. See also Natanzon v. McLaughlin, judicial district of New Britain at New Britain, Docket No. CV 05 4003287 S (July 5, 2005, Robinson, J.) ( 39 Conn. L. Rptr. 559). In that matter, the plaintiff sought to recover based on the same claimed accident and injuries which are at issue in the present matter.
A motion to dismiss was filed in Natanzon v. McLaughlin, supra, contending that the court lacked subject matter jurisdiction since the decedent had died prior to the commencement of that action. On July 5, 2005, the court granted the motion by memorandum of decision. See Natanzon v. McLaughlin, supra ( 39 Conn. L. Rptr. 559). The court stated that "proceedings instituted against an individual who is deceased at the time of the filing of suit are a nullity. Such proceedings are void ab initio and do not invoke the jurisdiction of the trial court." (Internal quotation marks omitted.) Id.
The copy of the officer's return which is annexed to the defendant's motion states that service of process here occurred on March 7, 2005. While the court's file does not contain the original of this document, the parties do not dispute that service occurred on that date.
Here, the plaintiff argues that the statute of limitations was tolled, pending the appointment of Sikora, between the date of the decedent's death (October 9, 2004) and the date of the appointment on December 21, 2004. She contends that, therefore, this action was timely commenced against the estate, within the tolling period, in March 2005, since the limitations period was extended by the tolling period until April 14, 2005, after process was served in this matter. Alternatively, she contends that, if the court finds that the limitations period was not tolled, this action should be allowed to go forward under General Statute § 52-592, the accidental failure of suit statute.
II. STANDARD OF REVIEW Practice Book § 17-49 provides that summary judgment shall be granted "if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." (Internal quotation marks omitted.) Home Ins. Co. v. Aetna Life Casualty Co., 235 Conn. 185, 202, 663 A.2d 1001 (1995). "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The test is whether a party would be entitled to a directed verdict on the same facts." (Internal quotation marks omitted.) Sherwood v. Danbury Hospital, 252 Conn. 193, 201, 746 A.2d 730 (2000). "The movant must show that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact." (Internal quotation marks omitted.) Miller v. United Technologies Corp., 233 Conn. 732, 751-52, 660 A.2d 810 (1995). While "the moving party has the burden of presenting evidence that shows the absence of any genuine issue of material fact, the opposing party must substantiate its adverse claim with evidence disclosing the existence of such an issue." Haesche v. Kissner, 229 Conn. 213, 217 640 A.2d 89 (1994). The opposing party must do more than merely assert the existence of a disputed issue of fact. See Burns v. Hartford Hospital, 192 Conn. 451, 455, 472 A.2d 1257 (1984). "Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court" in support of a motion for summary judgment. Id. "To oppose a motion for summary judgment successfully the nonmovant must recite specific facts . . . which contradict those stated in the movant's affidavits and documents." (Internal quotation marks omitted.) Connecticut National Bank v. Great Neck Development Co., 215 Conn. 143, 148, 574 A.2d 1298 (1990).The court notes that each party has presented uncertified evidence, in support of and in opposition to the motion. See Practice Book § 17-45; New Haven v. Pantani, 89 Conn.App. 675, 678-79, 874 A.2d 849 (2005) ("[O]nly evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment"; preliminary showing of genuineness required, citing Conn. Code of Evidence § 9-1).
Practice Book § 17-45 provides, in pertinent part, "A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like . . . Any adverse party shall at least five days before the date the motion is to be considered on the short calendar file opposing affidavits and other available documentary evidence."
However, our Supreme Court has stated that parties may "knowingly waive . . . compliance with the procedural provisions of the Practice Book relating to motions for summary judgment." (Footnote omitted.) Krevis v. Bridgeport, 262 Conn. 813, 824, 817 A.2d 628 (2003). Also, our Supreme Court has stated, "[w]e previously have afforded trial courts discretion to overlook violations of the rules of practice and to review claims brought in violation of those rules as long as the opposing party has not raised a timely objection to the procedural deficiency." Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 273, 819 A.2d 773 (2003). Here, where neither party raised an objection to consideration of the exhibits presented by their opponent, the court, in the exercise of its discretion, has reviewed the exhibits submitted by each party.
III. DISCUSSION
Citing General Statutes § 52-584 and 45a-375, the defendant argues that this action is barred as untimely, since it was not commenced within two years of the date of the accident, January 31, 2003. "In Connecticut, an action is commenced on the date of service of the writ upon the defendant." (Internal quotation marks omitted.) Hillman v. Greenwich, 217 Conn. 520, 527, 587 A.2d 99 (1991).
Section 52-584 provides, in pertinent part, "[n]o action to recover damages for injury to the person . . . caused by negligence . . . 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 . . ."
Section 45a-375(c) provides, "[e]xcept as provided in subsections (b) and (d) of this section, no claim may be presented and no suit on such claim may be commenced against the fiduciary, the estate of the decedent, or any creditor or beneficiary of such estate but within (1) two years from the date of the decedent's death or (2) the date upon which the statute of limitations applicable to such claim, including any period of limitation established pursuant to section 45a-357, would otherwise have expired, whichever shall first occur." The parties do not contend that either subsection (b) or (d) or section 45a-357 is applicable here.
The plaintiff argues that the limitations period was tolled from the date of the decedent's death until the appointment of the defendant as executrix, and that, therefore, this action is timely. The case law cited by the plaintiff in support of this argument pre-dates the passage of General Statute § 45a-375 in 1987. See, for example, Lubas v. McCusker, 153 Conn. 250, 255-56, 216 A.2d 289 (1965); Sagers v. Lee County Bank, 1 Conn.App. 535, 539, 473 A.2d 1239 (1984). Such case law "stand[s] for the proposition that the statute of limitations is tolled from the date of the decedent's death until the appointment of the administrator." Arbusto v. Perkins, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV03 0082016S (February 9, 2005, Schluger, J.) ( 38 Conn. L. Rptr. 665).
"[T]his was the state of the law until 1987 but it posed a problem in that if death tolled the statute of limitations and it did not begin to run until a fiduciary was appointed, a plaintiff could wait years to open an estate, thus delaying indefinitely the time within which such an action would need to be brought. In 1987, the legislature enacted Public Act 87-384 codified at Connecticut General Statutes §§ 45a-353 though 45a-383. These statutes, entitled `Claims Against Decedents' Estates for Decedents Dying On or After October 1, 1987[,]' specifically address the tolling problem referred to above." Arbusto v. Perkins, supra. Section 45a-375(c) contains no language concerning tolling.
The plaintiff also cites DeAngelis v. Winiarski, Superior court, judicial district of New Britain at New Britain, Docket No. 502458 (May 7, 2001, Graham, J.) ( 29 Conn. L. Rptr. 555). The applicability of § 45a-375 was apparently not raised as an issue in that matter.
"In the instant case, the statute at issue, Connecticut General Statutes § 45a-375(c), reveals an intention to supersede the law regarding the tolling of the statute of limitations as enunciated in Lubas v. McCusker, supra. The main principle of statutory construction is that the general assembly is always presumed to know all of the statutes and the effect that its action or nonaction will have upon any one of them. State v. Aloi, 86 Conn.App. 363, 370 [,861 A.2d 1180] (2004) [, cert. granted on other grounds, 273 Conn. 901, 867 A.2d 840 (2005)]. Clearly then, the legislature, in enacting Connecticut General Statutes § 45a-375(c), was presumed to understand the existing law and this statute was in effect curing legislation designed to rectify an existing problem." Arbusto v. Perkins, supra. Thus, contrary to the plaintiff's contention, the limitations period was not tolled.
Next, the court turns to the plaintiff's alternative argument, that, in accordance with § 52-592, the accidental failure of suit statute, this matter may proceed. "[I]n a long line of cases, we have held that § 52-592(a) is remedial in nature and, therefore, warrants a broad construction." Ruddock v. Burrowes, 243 Conn. 569, 575, 706 A.2d 967 (1998).
Section 52-592 provides, in pertinent part, "(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, or the action has been otherwise avoided or defeated by the death of a party or for any matter of form . . . the plaintiff . . . 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 . . .
(b) When any action has been brought against an executor or administrator or continued against an executor or administrator after the death of the defendant and has failed for any of the causes listed in subsection (a) of this section, the plaintiff, or his executor or administrator in case a cause of action survives, may commence a new action within six months after the determination of the original action."
The court also is guided by our Appellate Court's decision in Contadini v. DeVito, 71 Conn.App. 697, 803 A.2d 423, cert. denied, 262 Conn. 918, 812 A.2d 862 (2002). The factual circumstances there concerning the timing of the death of an alleged tortfeasor were similar to those here. There, as here, due to a lack of subject matter jurisdiction, the trial court dismissed a prior action against the defendant's decedent, who "was alive on the date of the plaintiff's alleged injury, but was dead at the time of the abode service of the original writ of summons and complaint." Id., 699. The trial court in Contadini then dismissed a second action, concluding that the first action was void ab initio and was not an action for the purposes of § 52-592 (a). See id., 700.
In reversing the trial court, the Appellate Court relied on Isaac v. Mount Sinai Hospital, 210 Conn. 721, 729-31, CT Page 7008 557 A.2d 116 (1989) and stated, "[t]he original action in the present case, which did not name the representative of the deceased defendant, was as much an `action' for the purposes of § 52-592 as was naming a representative of a deceased plaintiff prior to the appointment of such a representative in Isaac. The individual defendant named in the first action in this case had as close an identity with the executor defendant in the second action as the individual plaintiff had with the administratrix plaintiff in the second action in Isaac. That identity of interest allows the same nominal change of parties between the two actions in this case as was allowed in Isaac. The allegations of the plaintiff's cause of action in the original action and the second action are identical and, therefore, are the same cause of action for purposes of § 52-592." Contadini v. DeVito, supra, 71 Conn.App. 701-02.
The same is true here concerning the original action and the present action. For the purposes of § 52-592, the present action is the same cause of action as the original action against the decedent.
At oral argument, the defendant stated that, while the plaintiff may bring a new action under § 52-592, the present action could not survive since the complaint does not plead § 52-592 as its basis. The court is unpersuaded. "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, either by anticipation in the complaint or in the reply to a defense of the Statute of Limitations in order that the defendant might, if he chose, plead to them, this court has never held this to be a requirement." Ross Realty Corp. v. Surkis, 163 Conn. 388, 392, 311 A.2d 74 (1972). See also McKeever v. Fiore, 78 Conn.App. 783, 795-96, 829 A.2d 846 (2003).
In addition, although the defendant appears to concede this point by stating that the plaintiff may now bring a new action under § 52-592, the court notes that the fact the plaintiff commenced this action prior to the dismissal of the original action does not prevent her from relying on § 52-592. See Nelson v. The Stop Shop Co., Inc., Superior Court, judicial district of New Haven at New Haven, Docket No. 307467 (May 7, 1992, O'Keefe, J.) ( 6 Conn. L. Rptr. 410).
Under these circumstances, the court need not address the plaintiff's argument that the decedent's insurance carrier or the defendant had an obligation to inform her of his death, so that suit could be filed against his estate. No law was cited for this proposition.
IV. CONCLUSION
For the above-stated reasons, the defendant's motion for summary judgment is denied. It is so ordered.