Opinion
No. NNH CV 08-5018558
August 11, 2008
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #102
At issue is whether the court should grant the defendant's motion for summary judgment on the ground that the action is outside the statute of limitations and cannot be saved by the accidental failure of suit statute.
BACKGROUND FACTS
This action was commenced by service of process on the defendant, Harriet Shapiro, on February 28, 2008, and arises from a motor vehicle accident that occurred on September 30, 2004, between the plaintiff, Diana Ortiz, and the defendant. In count one, the plaintiff alleges that the collision and her injuries were the result of the defendant's negligence. In count two, the plaintiff alleges that her minor daughter, Bridgette, a passenger in her vehicle, was also injured as a result of the negligence of the defendant. This action is being brought under General Statutes § 52-592, the accidental failure of suit statute.
We note that on the summons in this case, the mother's name is the first named plaintiff followed by "Ortiz, Diana PPA Ortiz, Bridgette." The issue here is whether the failure of Bridgette Ortiz to be named as the plaintiff by her mother as next friend on the summons, effectively renders her mother as the only plaintiff in this case. "[T]he general rule is well established that a child may bring a civil action only by a guardian or next friend, whose responsibility it is to ensure that the interests of the ward are well represented." (Internal quotation marks omitted.) Newman v. Newman, 235 Conn. 82, 95, 633 A.2d 980 (1995). See Seabrook v. Greater Bridgeport Transit, Superior Court, judicial district of Fairfield, Docket No. CV 05 0326366 (April 9, 1998, Skolnick, J.) ( 21 Conn. L. Rptr. 657) ("[w]here the summons names as plaintiff the mother ppa the minor child, the infant child is not a party to the action"). "The issue of standing implicates this court's subject matter jurisdiction." Fish Unlimited v. Northeast Utilities Service Co., 254 Conn. 1, 31, 755 A.2d 860 (2000). Once the issue of subject matter jurisdiction is before the court, that issue must be resolved before the court can move onto other matters. Sockwell v. Farias-Barret, Superior Court, judicial district of Waterbury, Docket No. CV 054004892 (October 19, 2005, Matasavage, J.) ( 40 Conn. L. Rptr. 136). As a result, the court CT Page 13257 sua sponte dismisses count two for lack of subject matter jurisdiction. See Ryan v. Depanipilis, Superior Court, judicial district of Hartford, Docket No. CV 044002606 (April 28, 2005, Hale, J.T.R.) ( 39 Conn. L. Rptr. 293). In addition, the court will refer to Diana Ortiz as the plaintiff and address count one only.
On May 14, 2008, the defendant filed a motion for summary judgment on the ground that the action is barred by the two-year statute of limitations, General Statutes § 52-584 and cannot be saved by § 52-592. In support of the motion, the defendant submitted a memorandum of law and a copy of the case detail of Ortiz v. Shapiro ( Ortiz I), Docket No. CV 07 5008824 filed on January 24, 2007. The plaintiff filed a memorandum of law in opposition dated May 28, 2008, along with a copy of an affidavit of the plaintiff's attorney, a copy of an affidavit of Marshal Esposito, who was responsible for service of process on the defendant, and a copy of the writ, summons and complaint and the marshal's return in the original case that was never filed. The motion was heard at the short calendar on June 2, 2008.
DISCUSSION
"Practice Book [§ 17-49] provides that summary judgment shall be rendered forthwith 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 . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle [that party] to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Internal quotation marks omitted.) Deming v. Nationwide Mutual Ins. Co, 279 Conn. 745, 756-57, 905 A.2d 623 (2006). "As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent." (Internal quotation marks omitted.) Socha v. Bordeau, 277 Conn. 579, 586, 893 A.2d 422 (2006). As a general rule, "[s]ummary judgment may be granted where the claim is barred by the statute of limitations." Doty v. Mucci, 238 Conn. 800, 806, 679 A.2d 945 (1996).
Before resolving the motion for summary judgment, the court must address the adequacy of the supporting documents. Practice Book § 17-45 provides in relevant 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 . . ."
"[O]nly evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment . . . [and] Practice Book § [17-45] . . . contemplates that supporting [or opposing] documents . . . be made under oath or be otherwise reliable." (Citation omitted; internal quotation marks omitted.) New Haven v. Pantani, 89 Conn.App. 675, 678, 874 A.2d 849 (2005); see also Rockwell v. Quintner, 96 Conn.App. 221, 233-34 n. 10 899 A.2d 738, cert. denied, 280 Conn. 917, 908 A.2d 538 (2006). The affidavits submitted by the plaintiff are properly admissible as each is based on personal knowledge of the affiant. Both the case detail and the writ, summons and complaint along with the marshal's return are not properly authenticated nor are they certified, but neither of the parties has objected to their admissibility. Therefore, the court, in its discretion, may consider the evidence in deciding the motion. See Barlow v. Palmer, 96 Conn.App. 88, 91-92, 898 A.2d 835 (2006).
The defendant argues that the present lawsuit is untimely because § 52-584 mandates that an action in negligence "shall be brought but within two years from the date when the injury is first sustained or discovered." Without providing any legal authority or analysis, the defendant further argues that "the plaintiffs offered no evidence that the elements of . . . General Statutes [§]52-592 have been met [and] the plaintiffs previously [have] made the same claim in a prior accidental failure to sue lawsuit . . . That claim was decided on its merits to have no basis, by [the] granting of a Motion for Summary Judgment in favor of the defendant." In response, the plaintiff, who also fails to provide the court with any legal analysis, still asserts that "this matter has been properly reinstituted in accordance with . . . § 52-592."
For the purposes of this motion, the following procedural history is relevant. The present action arises from a motor vehicle accident that occurred on September 30, 2004. Accordingly, the applicable statute of limitations is § 52-584, which provides for a two-year statute of limitations for personal injury actions caused by negligence. Based on the affidavit of the plaintiff's attorney, a writ, summons and complaint dated September 22, 2006, with a return date of October 24, 2006, were provided to Marshal Esposito on September 22, 2006. He served the defendant on September 29, 2006, within the two year statute of limitations in § 52-584. The writ, summons and complaint, however, were not filed in the court. In his affidavit, Marshal Esposito attests that he may have lost or failed to return the writ, summons and complaint after service. Thereafter, ( Ortiz I) was brought pursuant to § 52-592 and the writ, summons and complaint were filed with the court on January 24, 2007. The defendant moved for summary judgment on June 28, 2007. The motion was scheduled to be heard at short calendar on August 20, 2007 before Judge Cosgrove. A continuance was requested by the plaintiff for additional time to obtain an affidavit from Marshal Esposito as to his failure to return the original pleadings to the court. The court did not grant the continuance but granted summary judgment in favor of the defendant, absent an objection by the plaintiff. The present action is before the court again based pursuant to § 52-592.
Section 52-592 provides in relevant 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 . . . for the same cause at any time within one year after the determination of the original action or after the reversal of the judgment."
On June 2, 2008, at oral argument, the defendant relied on Marangio v. Shop Rite Supermarkets, Inc., 11 Conn.App. 156, 825 A.2d 1389 (1987), in support of her motion for summary judgment. Marangio involved an appeal from the granting of the defendant's motion for summary judgment. Therein, the plaintiff had fallen at the defendant's supermarket on August 28, 1980. Id., 157. This case was timely commenced on August 12, 1982. Id., 158. On December 6, 1982, a judgment of nonsuit was entered against the plaintiff for failure to comply with discovery. Id. The plaintiff commenced another lawsuit on November 28, 1982, under the accidental failure of suit statute, § 52-592; again, a judgment of nonsuit was entered against the plaintiff for failure to comply with discovery on August 27, 1984. Id. The present action was then commenced pursuant to § 52-592 on August 20, 1985. Id. The defendant filed an answer and special defenses on October 22, 1985, in which it pleaded that the claim is barred by the statute of limitations. Id. The trial court granted the defendant's motion for summary judgment on the ground that since "the plaintiff's . . . action was commenced more than three years after the date of the alleged act or omission complained of [it] was barred by the statute of limitations and not saved by the application of General Statutes 52-592, the accidental failure of suit statute." Id., 159.
The Appellate Court noted in Marangia that this third action was outside of the statute of limitations as it was brought five years following the occurrence alleged in the complaint, unless it could be saved by § 52-592. Id. In making that determination, the court looked at the language in § 52-592 and how it impacts § 52-584. Id. The court stated that the accidental failure of suit statute provided the plaintiff with a year from the date of the judgment of nonsuit to bring a new action. Id..
Guided by the rules of statutory construction in examining the phrase "original action" in § 52-592. Id., 159-60. "[W]e note that the plaintiff is authorized by the statute to `commence a new action . . . within one year after the determination of the original action . . . The statute does not say `may continue the action by bringing suit within one year,' or use any words other than those which contemplates an end to the original action and the commencement of a new action within one year of the end of the original action. The interplay of the words `new action' and `original action' can lead to no other conclusion than that the plaintiff is limited in time to bringing a new action within one year from the end of the original action, not the last action. Nowhere in the statute is there language that contemplates a continuing action so that a new action may commence within one year from the last nonsuit. Such construction would be contrary to the public policy inherent in statute of limitations. The applicable statute of limitations would be extended indefinitely and would be of no effect. There would be no finality in the litigation process.
"We hold that `original action' refers to the first action brought by the plaintiff and that the granting of summary judgment for the defendant by the trial court manifests a clear understanding of the meaning of 52-592(a) and gives efficacy to the public policy considerations inherent in the interplay between statutes of limitations and those statutes authorizing suits, under limited circumstances, where the suit would be otherwise barred by the statute of limitations." Id., 160-61.
In the present case the "original action" was initiated by service of process on the defendant by Marshal Esposito on September 29, 2006, within the statutory time period of two years set forth in § 52-584. The Supreme Court in Rocco v. Garrison, 268 Conn. 541, 848 A.2d 352 (2004), stated that "under the laws of our state, `an action is commenced not when the writ is returned but when it is served upon the defendant.'" Id., 549; see Rana v. Ritacco, 236 Conn. 330, 337, 672 A.2d 946 (1996) (in Connecticut, an action is commenced when the writ, summons and complaint are served on the defendant). In construing the statute, the court stated that "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." Rocco v. Garrison, supra, 550. The court concluded that "the plaintiff's 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 statue of limitations." Id., 552.
In Lane v. Essposito, 50 Conn.Sup. 253, 918 A.2d 313 (2007), the issue was whether the savings statute applied to the case before the court where the plaintiff never returned the original suit to court but, instead, elected to bring the present action nine months later under § 52-592. In Lane, the defendant argued that the plaintiff could not avail himself of § 52-592 because he had voluntarily decided not to return the summons and complaint to the court, which is equivalent to a withdrawal of the action. Id., 255. The court disagreed stating that "the one year time limitation [in § 52-592] for commencing a new action would commence when the original action is not returned to court six days prior to the return day as required by General Statutes § 52-46a." Id. Hence that court concluded that the savings statute did apply, and, therefore, the case was not barred by the statute of limitations.
Applying, these principles to the case at hand, the original action was commenced upon service of process when the writ was served on the defendant on September 29, 2006, within the two-year statute of limitation as set forth in § 52-584. As a result, the plaintiff could avail herself of the savings statute to commence a subsequent action within one year from determination of the original action. The plaintiff filed a subsequent action on January 24, 2007, well within this one-year time period of § 52-592. Thereafter, a judgment in favor of the defendant was rendered by the court on August 20, 2007. See Ortiz I.
In addition, the court notes that Connecticut's saving statute only applies if the original claim was dismissed for procedural reasons and not on the merits. Holt v. KMI-Continental, Inc., 95 F.3d 123 (2d. Cir. 1996), cert. denied, 520 U.S. 1228, 117 S.Ct. 1819, 137 L.Ed.2d 1027 (1997). The granting of a motion for summary judgment is a final judgment on the merits and the entry of summary judgment is not one of the "procedural problems" listed in § 52-592, nor can it be construed as a failure to reach the merits of the case "for any matter of form." Thus, the plaintiffs cannot avail themselves of § 52-592 in attempting to assert their present claims. Fawcett v. Friel, Superior Court, judicial district of Waterbury, Docket No. 115040 (January 4, 1996, Flynn, J.).
On February 28, 2008, the plaintiff again commenced an action pursuant to § 52-592, which is presently before this court. The issue is whether following the judgment rendered on August 20, 2007, the plaintiff again can avail herself of the savings statute. Based on the language of § 52-592 as interpreted by the Appellate Court, the plaintiff had to institute a lawsuit no later than "one year after the determination of the original action." Since the plaintiff had initiated the original action on September 29, 2006, six days prior to the return date of October 24, 2006, or October 18, 2006, is the date of determination of the original action. Thus, the plaintiff had until October 17, 2007, to commence an action pursuant to the accidental failure of suit statute. February 28, 2008, is clearly outside the one year time period allowed by § 52-592.
Based on the foregoing the defendant's motion for summary judgment is granted.