Opinion
No. MMX CV09-5007826-S
September 3, 2010
MEMORANDUM OF DECISION
The plaintiffs, Barbara Novak and Gregory Dix, allege that a furnace serviced by the defendant, John Collinson, was repaired incorrectly resulting in oil leakage and personal and property damage, and other losses. The third count of plaintiffs' amended complaint alleges that sometime between November 5, 2006, and January 10, 2007, an oil filter leaked resulting in oil polluting the plaintiffs' well. The fourth count is directed at the defendants, Robert and Melissa Scott, and alleges that these defendants were negligent in their inspection of the oil filter and the detection of the odor of leaking oil.
The defendants, John Collinson, and Robert and Melissa Scott, each move to dismiss counts three and four on the ground that the court lacks subject matter jurisdiction to hear the instant action. Specifically, the defendants move to dismiss the plaintiffs' claims on the basis that the allegations contained in counts three and four are governed by the jurisdictional statute of limitations set forth in General Statutes § 52-577c and that the statute of limitations expired prior to the commencement of the instant action. Specifically, they argue that because the claim against them was not commenced until approximately ten months after the alleged acts of the defendants, the court has no jurisdiction to entertain the plaintiffs' claim and, therefore, counts three and four must be dismissed.
General Statutes § 52-577c provides: "(a) For the purposes of this section: (1) `Environment' means any surface water, ground water, drinking water supply, land surface or subsurface strata or ambient air within the state or under the jurisdiction of the state; (2) `exposure' means any contact, ingestion, inhalation or assimilation, including irradiation; (3) `hazardous chemical substance or mixture' means petroleum, a petroleum product or any chemical substance or mixture for which there is a federal standard, including any law, requirement, tolerance, prohibition, action level or similar legal authority adopted by an agency pursuant to federal law, including any such standard or legal authority adopted by a state or local government pursuant to federal law, generally intended to prevent, reduce or mitigate the risk of a disease or class or type of diseases to an individual or individuals resulting from exposure to such chemical substance or mixture; (4) `hazardous pollutant' means any designated, specified or referenced chemical considered to be a `hazardous substance' under Section 101(14) of the Comprehensive Environmental Response, Compensation, and Liability Act, 42 USC 9601(14); (5) `release' means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping or disposing into the environment.
"(b) Notwithstanding the provisions of sections 52-577 and 52-577a, no action to recover damages for personal injury or property damage caused by exposure to a hazardous chemical substance or mixture or hazardous pollutant released into the environment shall be brought but within two years from the date when the injury or damage complained of is discovered or in the exercise of reasonable care should have been discovered.
"(c) The provisions of subsection (b) of this section shall not apply to an action brought against (1) any municipal waterworks system established and operated under chapter 102 or any special act, (2) any regional water authority established under any general statute or special act, or (3) any water company as defined in section 16-1."
The plaintiffs object to the motions to dismiss on the basis that the controlling statute is General Statutes § 52-577, not § 52-577c. They further argue that the motions to dismiss are untimely filed and as such, the statute of limitations claim has been waived. They further submit that the defendants have admitted their negligent acts because the court has to consider the pleadings in the most favorable light to the plaintiffs. They also argue that public policy must be considered and that the legislature intended that § 52-577c(b) allow an unlimited statute of limitations provided the action is brought within two years of the discovery of the injury. The plaintiffs appear to contend that §§ 52-577 and 52-577c allow the plaintiffs to bring a claim within three years and if, after the three-year period provided for in § 52-577 expires, there is a discovery of injury as the result of pollution, the plaintiffs may still bring an action within two years of discovery of the injury as provided for in § 52-577c. As such, they submit that the action was properly brought under § 52-577 because it was filed within three years of the discovery of the harm and within two years of the alleged acts of the defendants.
General Statutes § 52-577 provides: "No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of."
"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction . . . When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light . . . [A] court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Citation omitted; internal quotation marks omitted.) Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005). The motion to dismiss shall be used to assert a lack of jurisdiction over the subject matter. Practice Book § 10-31. "Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction." St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003), superseded by statute on other grounds as stated in Flanagan v. Blumenthal, 100 Conn.App. 255, 260, 917 A.2d 1047 (2007). A statute of limitations defense "must be specially pleaded and cannot be raised by a [motion to dismiss]." Ross Realty Corp. v. Surkis, 163 Conn. 388, 391, 311 A.2d 74 (1972); see Practice Book § 10-50. Nevertheless, "[w]here . . . a specific time limitation is contained within a statute that creates a right of action that did not exist at common law, then the remedy exists only during the prescribed period and not thereafter . . . In such cases, the time limitation is not to be treated as an ordinary statute of limitations, but rather is a limitation on the liability itself, and not of the remedy alone . . . [U]nder such circumstances, the time limitation is a substantive and jurisdictional prerequisite, which may be raised [by the court] at anytime, even by the court sua sponte, and may not be waived." (Internal quotation marks omitted.) Ambroise v. William Raveis Real Estate, Inc., 226 Conn. 757, 766-67, 628 A.2d 1303 (1993); see also Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 22-23, 848 A.2d 418 (2004); Williams v. St. Francis Hospital, Superior Court, judicial district Middlesex, Docket No. CV 05 04003043 (November 22, 2005, Silbert, J.) ( 40 Conn. L. Rptr. 346). The defendants' motions to dismiss are therefore properly before the court.
General Statutes § 52-577c(b) provides, in pertinent part, that " [n]otwithstanding the provisions of sections 52-577 and 52-577a, no action to recover damages for personal injury or property damage caused by exposure to a hazardous chemical substance of mixture or hazardous pollutant released into the environment shall be brought but within two years from the date when the injury or damage complained of is discovered or in the exercise of reasonable care should have been discovered." (Emphasis added.) Section 52-577c applies to causes of action for damages caused by a "spilling", "release" or "leaking" of "petroleum" or "a petroleum product." Furthermore, "[i]t is generally recognized that [ § 52-577c] is the applicable statute of limitations for personal injury or property damage caused by exposure to a hazardous pollutant or hazardous chemical substance or mixture whether the claim is based on negligence, or some other theory." French Putnam, LLC v. County Environmental Services, Inc., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 98 0166445 (September 6, 2002, Adams, J.) [ 33 Conn. L. Rptr. 3]. Therefore, the court finds that § 52-577c(b) provides the applicable statute of limitations for causes of action seeking recovery for damages resulting from exposure to hazardous substances. See also Monroe v. Underground Construction Survey, Inc., Superior Court, judicial district of Fairfield, Docket No. CV 01 0384754 (August 17, 2005, Doherty, J.) [ 39 Conn. L. Rptr. 806]; 70 Water Street Assoc., LLC v. Harris Gans, Co., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 000180713 (March 7, 2005, Lewis, J.) [ 38 Conn. L. Rptr. 810]; Tolchin v. Shell Oil Co., Superior Court, complex litigation docket at New Britain, Docket No. X03 CV 970510328 (July 30, 2004, Peck, J.) [ 37 Conn. L. Rptr. 575]; Goldblum v. The Pittston Co., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 920126252 (April 24, 1996, Steven, J.) [ 16 Conn. L. Rptr. 512]. The court finds that § 52-577c is the governing statute for claims of damages caused by leaking petroleum or petroleum products and the limitations period therein contains an explicit two-year statute of limitations.
Pursuant to General Statutes § 52-577c, the plaintiffs claims are subject to a two-year statute of limitations. As noted previously, the plaintiffs have alleged that the defendants' acts of negligence occurred between November 5, 2006, and January 10, 2007. Therefore, as of January 10, 2007, the plaintiffs had discovered the damage of which they complained. Thus, the plaintiffs were permitted until January 10, 2009 to commence an action for their alleged losses. They did not commence this action until November 2, 2009, almost ten months after the two-year deadline had passed. Because the discovery of the contamination by the plaintiff is alleged to have been January 10, 2007, the instant action was clearly commenced after the applicable statute of limitations. The court, therefore, has no jurisdiction to hear the instant action.
Further, the court finds no authority, nor have the plaintiffs provided any authority, to support their claim that the two-year statute of limitations provided for in § 52-577 may be tacked onto the three-year statute of limitations provided for in § 52-577.
Accordingly, the motions to dismiss the third and fourth counts of the plaintiffs' amended complaint are granted.