Opinion
No. CV 09 501 2096
June 16, 2010
MEMORANDUM OF DECISION
Motion to Dismiss, #112.00
The defendant Mystic Fire District asks the court to dismiss this action on the ground that the plaintiff's action is barred by the statute of limitations.
FACTS
The plaintiff, Juan Pinos, commenced this action by service of process against the defendant, the Mystic Fire District, through service on Anthony Manfredi, Jr., who accepted service on behalf of the defendant on June 10, 2009. On June 16, 2009 the plaintiff filed a complaint in which the following facts are alleged. At approximately 12:54 A.M., August 4, 2005, a fire occurred at a multi-family residential property owned by George Kanabis ("Kanabis"), located at 19 East Main Street, Mystic, CT, within the town of Stonington. Jose Chillogallo ("Chillogallo") was a tenant in occupancy of an apartment located on the second floor of the residential property, and was present in the building when the fire occurred. Chillogallo died as a result of the heat, smoke inhalation, and burns suffered as a result of the fire. The defendant, the Mystic Fire District, was responsible under statute for conducting yearly safety inspections of dwellings such as the property located at 19 East Main St., but failed to conduct such an inspection on the property annually. At the time of the fire, there existed numerous alleged building, fire, health and safety code violation on the 19 East Main St. premises, including but not limited to (1) a lack of proper exits from the second floor occupancy; (2) a lack of smoke detectors and/or improperly installed or maintained smoke detectors on the second floor; (3) no smoke barrier installed in the front stairway; (4) a storage of hazardous/combustible material at the 19 East Main St. location; (5) doors in place on the second floor which were not properly rated fire doors; (6) no certificate of occupancy for the rear portion of the second floor being used for residential purposes; (7) no fire extinguishers or other fire-prevention equipment; and (8) the means of egress from the premises were not all maintained free of obstructions. The plaintiff, bringing suit in his capacity as the duly appointed executor of the estate of Chillogallo, the deceased, alleges that the injuries and death suffered by Chillogallo were the result of negligence on the part of the defendant, in that the defendant (1) failed to inspect the premises as required under General Statutes § 29-305; (2) failed to properly supervise the defendant's employees; (3) failed to create a plan for yearly inspection of existing residential buildings as required under § 29-305; (4) failed to warn the tenants of 19 East Main St. of the risks to their health due to the above-alleged safety violations; and (5) failed to inspect the premises at 19 East Main St. even after being given notice of the above-alleged violations.
Manfredi Jr. is the "Assistant Chief" of the Mystic Fire District and was presently in charge of the defendant's main office at the time of service.
The plaintiff originally filed a lawsuit in 2007 against multiple defendants: (1) George Kanabis, the owner of the subject premises; (2) the town of Stonington, CT; (3) Frank Hilbert, individually as the fire marshal and fire chief of Mystic, CT for the town of Stonington, CT; and (4) the town of Mystic, CT. During discovery in that initial suit, the plaintiff alleges that he discovered first that Mystic, CT is not a legal entity, second, that Frank Hilbert was not an agent or employee of the town of Stonington, and third, that the "Mystic Fire District" was a separately incorporated legal entity. The plaintiff then moved to dismiss that portion of the original action that pertained to the town of Stonington, CT, and Mystic, CT. These portions were dismissed in separate actions, with the motion to dismiss as to the town of Stonington being granted on January 6, 2009, and the motion as to Mystic, CT being granted on February 3, 2009. Thereafter, four and one-half months later the plaintiff commenced this action against The Mystic Fire District on June 16, 2009.
On February 2, 2010, the defendant filed a motion to dismiss, on the ground that the plaintiff's claim is barred by the statute of limitations. The plaintiff argued that his claim was saved under the application of General Statutes § 52-572, and § 52-573, and that therefore the statute of limitations did not apply. The defendant argued that those statutes were not applicable in this instance, as the original suit was never commenced against the defendant, and that plaintiff's failure to file a claim against the defendant was not the result of a reasonable and honest mistake of fact. The defendant filed a memorandum in support of the motion, as well as a reply memorandum, while the plaintiff filed a memorandum in opposition of the motion and a sur reply memorandum.
DISCUSSION A.
"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." (Internal quotation marks omitted.) Caruso v. Bridgeport, 285 Conn. 618, 627, 941 A.2d 266 (2008); R.C. Equity Group, LLC v. Zoning Commission, 285 Conn. 240, 248, 939 A.2d 1122 (2008).
Normally, 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 also 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 limitation, 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 any time, 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). As this is a wrongful death action, the defendant asserts that it is appropriate to raise the issue of a statute of limitations defense by a motion to dismiss.
B.
The plaintiff commenced this action under General Statutes § 52-555, which recognizes actions for wrongful death, providing that "a) In any action surviving to or brought by an executor or administrator for injuries resulting in death, whether instantaneous or otherwise, such executor or administrator may recover from the party legally at fault for such injuries just damages together with the cost of reasonably necessary medical, hospital and nursing services, and including funeral expenses, provided no action shall be brought to recover such damages and disbursements but within two years from the date of death, and except that no such action may be brought more than five years from the date of the act or omission complained of."
Actions for wrongful death did not exist at common law. "It is only by virtue of § 52-555 of the General Statutes that an action or right of action, which includes as elements of damages a person's death or any of its direct consequences, survives . . . Because the statute is in derogation of the common law it is limited to matters clearly within its scope." (Citation omitted.) Leland v. Chawla, 39 Conn.Sup. 8, 10-11, 467 A.2d 439 (1983). As the wrongful death statute contains it's own statute of limitations and is not an action found at common law, it is proper to raise the statute of limitations defense through a motion to strike. There is no question that this action comes well after the statute of limitations would have tolled. Both the fire and Chillogallo's death, which prompted this action, occurred on August 4, 2005, while the complaint was filed against the plaintiff on June 10, 2009, a period of almost four years. This is well outside the two-year statute of limitations established by § 52-555. The plaintiff does not dispute or address this in their reply memoranda to the defendant's motion to dismiss. Thus the statute of limitations issues are ripe for consideration in this motion.
C.
The plaintiff argues instead that the suit should be considered timely, as the suit was brought under General Statutes § 52-592, the so-called "Accidental Failure of Suit" statute, and General Statutes § 52-593, the "Wrong Defendant" statute, and that therefore the statute of limitations defense does not apply in this case. The defendant argues in response that the plaintiff fails to meet the requirements of either statute, and that the complaint is time-barred.
Gen. Stat. § 52-592 provides, in relevant part that "[if] any action, commenced within the time limited by law, has failed one or more times to be tried on its merits . . . the plaintiff, or, if the plaintiff is dead and the action by law survives, his executor or administrator, 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." Gen. Stat. § 52-593 provides in relevant part that: "[when] a plaintiff in any civil action has failed to obtain judgment by reason of failure to name the right person as defendant therein, the plaintiff may bring a new action and the statute of limitations shall not be a bar thereto if service of process in the new action is made within one year after the termination of the original action."
With regard to § 52-592, the plaintiff fails to make any argument as to why this statute should apply. The defendant correctly argues that in order for § 52-592 to apply, the subsequent action must be commenced against the same party named in the original action. § 52-592(d) provides that "[the] provisions of [§ 52-592] shall apply to any defendant who files a cross complaint in any action, and to any action between the same parties or the legal representatives of either of them for the same cause of action or subject of action." (Emphasis added.) In Vessichio v. Hollenbeck, 18 Conn.App. 515, 558 A.2d 686 (1989), the appellate court held that an untimely action against a school custodian to recover for injuries allegedly sustained on school premises was not saved by § 52-592, as the timely action, which was not tried on its merits, was against the town rather than against the custodian. In the instant case, the defendant was not a named defendant in the first complaint filed by the plaintiff in 2007. Rather, the defendant was only named as a defendant in the subsequent complaint. While the cause of action is the same here as in the original, timely complaint, the defendant clearly was not a party to said complaint. Accordingly, § 52-592 does not apply to the plaintiff in this case.
The issue of whether § 52-593 applies to save the plaintiff's claim turns on if the plaintiff's mistake in not naming the Mystic Fire District as a defendant was a reasonable mistake. The defendant argues, somewhat curiously, that the plaintiff knew or should have known that the defendant Mystic Fire District was a separate entity from the town of Stonington and Mystic, CT, and that the plaintiff chose not to sue the defendant in the original complaint. The defendant argues that the plaintiff performed no due diligence in determining the proper identity of the liable party, and that under § 52-593 there needs to be a "reasonable and honest mistake of fact as to the identity of the truly responsible entity." (Defendant's Reply Memorandum to Plaintiff's Objection to the Motion to Dismiss, 3.)
The plaintiff argues that the failure to name the Mystic Fire District as a defendant in the original complaint stems from confusion over what if any was the legal status of "Mystic, CT." The plaintiff argues this was a good faith mistake of fact. The plaintiff also argues that there was little to alert him that the defendant was a separate legal entity from the town of Stonington.
The Appellate Court has construed that "[the] Supreme Court has recognized that § 52-593 applies only in circumstances in which the plaintiff's original action failed by reason of naming, in fact, the wrong defendant; that is, in cases in which the naming of the wrong defendant was the product of a reasonable and honest mistake of fact as to the identity of the truly responsible individual. See Perzanowski v. New Britain, 183 Conn. 504, 507, 440 A.2d 763 (1981); see also Vessichio v. Hollenbeck, 18 Conn.App. 515, 520, 558 A.2d 686 (1989). To illustrate, § 52-593 would apply in a situation in which a plaintiff erroneously sues A under the mistaken belief that A negligently operated or owned a vehicle, when in fact B operated or owned the vehicle." (Emphasis added.) Kronberg v. Peacock, 67 Conn.App. 668, 672-73, 789 A.2d 510, cert. denied, 260 Conn. 902, 793 A.2d 1089 (2002).
In Tamburrino v. Allard, Superior Court, judicial district of Ansonia-Milford at Derby, DocketNo. CV 03 0083429 (November 12, 2004, Lager, J.) ( 38 Conn. L. Rptr. 222), the court denied the defendant's motion for summary judgment on the plaintiff's action brought pursuant to § 52-593. The court stated: "The Appellate Court's construction of § 52-593 to require `a reasonable and honest mistake of fact' in naming the wrong defendant does not . . . require that the plaintiff demonstrate that he or she has exhausted every avenue to discover the identity of the tortfeasor. A plaintiff is eligible for the relief that § 52-593 provides if the original action was brought within the limitation period of § 52-584 against a person whom the plaintiff honestly, but mistakenly, believed as a matter of fact was the responsible party based on a reasonable investigation." Id., at 223. Additionally, "[52-593] does not require persistent attempts to discover the responsible defendant when reasonable diligence initially discloses the apparent wrongdoer, even where there is some suspicion that another person may be responsible for the injury. A bona fide mistake in finding the right defendant is sufficient to invoke the statute. Perfection and total diligence is not required, or the purpose of the statue would be seriously undermined." Carmona v. Mazzola, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 91 0282549 (June 1, 1993, Fuller, J.) ( 9 Conn. L. Rptr. 288).
The plaintiff's attorney has filed an affidavit in opposition to this motion to dismiss. Attached to the affidavit was the Connecticut Department of Public Safety a report regarding the fire that is central to this case. The report identifies that fire took place at a residence with a given address of 19 East Main St., Mystic, CT, which was within the borders of the town of Stonington, CT. The report has a number of references in multiple places the words "Mystic," "Mystic Fire Marshal," and "Mystic Fire Department." For example on Page 1, 2 and 3 of 12 the report references the "Mystic section of Stonington, Ct"; "Mystic Fire Marshal's office" "Fire Marshal Frank Hilbert . . ."; "Stonington Police Department-Detective Sergeant David Knowles, Detective Joseph Coco and Detective Cody Floyd." The "fire was reported to the Stonington Police Department via 911 and the Mystic Fire Department was subsequently dispatched . . ." On page 1 of the report the police officers are identified as members of the Stonington Police Department while on page 3 of the report they are also identified as being members of the "Mystic Police Department." The initial complaint filed by the plaintiff repeats the lack of clarity as to the relationship between the various public safety entities that responded to the fire.
The plaintiff maintains that he made a mistake of fact in citing the "Fire District of Mystic" as being an agency or department of the town of Stonington. The initial complaint sues "Frank Hilbert individually and as the Fire Marshal and Fire Chief of Mystic, Connecticut for the Town of Stonington."
The defendant has further argued that even if the plaintiff was unaware of the defendant as a separate legal entity, they should have learned this fact through due diligence and that therefore this was not a reasonable and honest mistake of fact. The defendant first argues that as the plaintiff's original complaint was not able to be served against Mystic, CT as the town clerk for Stonington refused it on the grounds that Mystic was not a legal entity, the plaintiff therefore should have learned the error in their complaint. The defendant is correct, but the argument is misleading. This turn of events certainly alerted the plaintiff to the fact that Mystic, CT was not a legal entity, but this has nothing to do with the plaintiff's claim against Frank Hilbert and the defendant Mystic Fire District, whom the plaintiff believed to be agents of the town of Stonington, for which service was accepted. It was only during discovery of the action against the town of Stonington that the plaintiff learned that the defendant was a separate entity from the town itself.
The defendant also argues that "[the] plaintiff also points to the fact that the Connecticut Department of Public Safety Report references Frank Hilbert as the Mystic Fire Marshal, and that 19 East Main Street is in the Mystic section of the Town of Stonington as providing the basis for a bona fide belief that the Town of Stonington was responsible . . . for the actions of the Fire Marshal. It is to be noted that no further inquiry was made with respect to the viability of these claims against the Town of Stonington." (Def. Reply Mem., 2-3.) The defendant also submitted as an exhibit in support of the motion to dismiss a copy of the fire marshal's report. (Defendant's Exhibit 1, 3/5/10, at 2.) The defendant claims that the notation on the bottom of the page, which reads "Mystic Fire District," should have put the plaintiff on notice that the Mystic Fire District was in fact a separate entity and the plaintiff should have known of it's existence. The defendant's reliance on this report is misplaced. As noted many times, "Mystic" is used in reference to a section of the town of Stonington. There is nothing in the wording of "Mystic Fire District" that would alert a person to the fact that it is a separate legal entity.
As the court has noted, "`a reasonable and honest mistake of fact' in naming the wrong defendant does not . . . require that the plaintiff demonstrate that he or she has exhausted every avenue to discover the identity of the tortfeasor." Garcia v. Aces, Superior Court judicia district of New Haven, Docket No. CV 09 5027557 (July 29, 2009, Wilson, J.). Here, the plaintiff relied on the address of the fire, the report prepared by the fire marshal, and the report prepared by the Connecticut Department of Public Safety in constructing their beliefs that Mystic, CT was a legal entity; that Frank Hubert and the Mystic Fire District were an agent of the town of Stonington; and that Stonington, CT was liable in this instance. As the court does not require the plaintiff to exhaust every avenue in determining the identity of the tortfeasor, the court finds that the plaintiff made a reasonable and honest mistake with regard to the identity of the proper defendant in this case. In light of this determination the plaintiff's claim is saved by application of Gen. Stat. § 52-573 and the defendant's motion to dismiss is denied.