Opinion
CV166062005S
05-30-2017
Keisha Sanders v. Auger's Snow Removal, LLC
UNPUBLISHED OPINION
MEMORANDUM OF DECISION [#113.00]
Steven D. Ecker, J.
This is a lawsuit seeking damages for personal injuries sustained by plaintiff when she fell in a parking lot on Middletown Avenue in New Haven, Connecticut, on November 8, 2012. A prior lawsuit involving the same incident was brought by plaintiff against the premises owner, 140 Middletown Avenue, LLC (" owner"), but that case terminated in a judgment for the owner after it was learned through discovery that it did not exercise possession or control over the premises at the relevant time. See Memorandum of Decision, Sanders v. 140 Middletown Avenue, LLC, Docket No. CV14-6049933, (October 29, 2015, Entry #123.20) (Alander, J., granting summary judgment in favor of defendant-owner). The undisputed facts established that the owner had leased the land to a tenant, First Student, Inc., and the lease conferred upon the tenant full control and responsibility for maintenance of the area where the alleged defect existed.
Plaintiff presumably did not bring suit against First Student., Inc., because it was her employer. See General Statutes § 31-284(a) (exclusivity bar of workers' compensation act).
The instant case was filed about six months after judgment was entered in the original case. It involves the same incident and injuries as the original lawsuit, but the sole defendant here is Augur's Snow Removal, LLC (" Auger's"). The complaint alleges that Auger's is liable to plaintiff because it had been hired to remove snow at the premises, and its negligence in the performance of its duties resulted in plaintiff's injuries.
Auger's moves for summary judgment on two grounds. First, it argues that the statute of limitations has run on plaintiff's lawsuit, and the suit is not saved by the " wrong defendant" savings statute, General Statutes § 52-593. Second, it argues that the claim is barred by principles of res judicata. Neither argument has merit.
Section 52-593 states, in relevant part: " 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."
In the court's view, § 52-593 operates to save plaintiff's claim against Auger's under the circumstances of this case. Plaintiff failed to obtain judgment in the original lawsuit when the owner's motion for summary judgment was granted. That motion was granted because plaintiff (a) had sued the wrong defendant (i.e., the landowner, which, unbeknownst to plaintiff at the time she brought suit, had ceded control over the relevant location to its lessee), and (b) had failed to sue the entity legally responsible for maintaining the parking lot in safe condition. In the original lawsuit, plaintiff, logically but mistakenly, had named the owner as the only defendant. She later learned that the owner had no legal liability for her injuries because it did not exercise the requisite possession and control over the relevant portion of the premises, and she now claims that Auger's was responsible for maintenance of the parking lot area where she fell. The present case, against Auger's, was commenced within one year after the termination of the original lawsuit.
Auger's is correct that the applicable statute of limitations ran on November 8, 2014, two years after plaintiff's fall. Auger's contends that § 52-593 fails to save plaintiff's belated effort to sue the legally responsible party. Its argument is not that plaintiff sued the (or a) " right defendant" in the first lawsuit. See, e.g., Finkle v. Carroll, 315 Conn. 821, 832, 110 A.3d 387 (2015) (holding that statute is inapplicable if plaintiff in first lawsuit named even one " right" defendant); Iello v. Weiner, 129 Conn.App. 359, 364, 20 A.3d 81 (2011) (same). Nor does Auger's argue that a mistake of law (rather than a mistake of fact) caused plaintiff's failure to name it as a defendant in the original lawsuit. See, e.g., Isidro v. State, 62 Conn.App. 545, 549-50, 771 A.2d 257 (2001) (statute inapplicable where first case was unsuccessful due to mistaken legal theory rather than mistake of fact).
Rather, defendant contends that plaintiff is precluded from taking advantage of the savings statute because plaintiff's failure to sue it in the original case was based on an unreasonable mistake; plaintiff could have sued Auger's in the original case when the owner impleaded Auger's as a third-party defendant in that case. Auger's observes that plaintiff had a statutory right to assert a direct claim against it in the original case, within twenty days from the date of its appearance after being impleaded, pursuant to General Statutes § 52-102a(c). Plaintiff's failure to do so, contends Auger's, precludes plaintiff from claiming that her failure to name Auger's as a defendant in the original suit was the product of a " 'reasonable and honest mistake of fact.'" See Defendant's Memorandum of Law dated November 11, 2016, at 5 (quoting Isidro v. State, 62 Conn.App. 545, 549-50, 771 A.2d 257 (2001)).
The owner moved to implead Auger's under General Statutes § 52-102a, based on a claim of common law (" active-passive") indemnification. See Memorandum of Law in Support of Motion to Implead, dated May 13, 2015 (#112.00). The owner did not implead Auger's as an " apportionment defendant" under § 52-102b. Whether or not this distinction matters for present purposes is not an issue that has been raised or briefed by the parties.
The owner moved to implead Auger's on May 13, 2015 [#111.00]; the motion to implead was granted on May 26, 2015 [111.10]; and the owner's third-party complaint against Auger's was filed, as served, on June 26, 2015 [#113.00].
This court disagrees. General Statutes § 52-593 is a remedial statute and " 'should be construed broadly to accomplish its remedial purpose." Finkle v. Carroll, supra, 315 Conn. at 831, quoting DiPietro v. Farmington Sports Arena, LLC, 123 Conn.App. 583, 594, 2 A.3d 963 (2010), rev'd on other grounds, 306 Conn. 107, 49 A.3d 951 (2012). The facts of this case come within the plain language of General Statutes § 52-593. The statute cannot be rewritten in the name of statutory construction to incorporate exceptions it does not contain. Plaintiff failed to obtain judgment in the original lawsuit because she named the owner, and no one else, as a defendant. Her case against the owner was not lost due to a legal mistake based on a misapprehension regarding applicable law, but, rather, resulted from a factual mistake about who was responsible for the allegedly negligent act or omission at issue. Plaintiff sued the property owner, but it turned out that the owner was the wrong defendant on the facts of the case as those facts developed in the course of the litigation.
The situation would be different if plaintiff had originally named only her employer (the lessee of the property) as defendant, and then seen her case dismissed because the employer was immune from suit under the statutory exclusivity bar, see n.1 above. A legal error of this nature could not be remedied under § 52-593. See p. 2 above. Again, the present circumstances involves a prior lawsuit defeated as a result of a factual error that occurred when plaintiff mistakenly sued a party who had, in fact, ceded control over the premises to a lessee.
In the court's view, plaintiff does not lose her ability to proceed as she has done, under § 52-593, because she instead could have invoked § 52-102a(c) to sue Auger's in the original case. Calling her conduct " unreasonable" in this regard does not change the analysis. To begin with, § 52-593 does not contain a " reasonableness" prong that would require a plaintiff to demonstrate that the mistake was a reasonable one. Compare, e.g., General Statutes § 52-212(a) (requiring showing of " reasonable cause" to open judgment). At least viewed in hindsight, the origin of many (probably most) lawsuits against the " wrong" defendant can be traced back to some degree of carelessness on the part of client or counsel; the statute is designed to provide a procedural remedy to avoid the harshness of forfeiture under those very circumstances. Although there is dicta in the Isidro case suggesting that the statute is available only to plaintiffs whose failure to name the right defendant is due to a " reasonable and honest" mistake of fact, 62 Conn.App. at 549-50, it would be unwise to rely on that dicta in light of the Supreme Court's explicit warning on this particular point in Finkle v. Carroll, supra, 315 Conn. at 842 n.19 (2015) (noting that the " reasonable and honest mistake gloss . . . may well be of questionable vitality").
This is not to say that a plaintiff is permitted to abuse the legislative grace reflected in the savings statute, by engaging in bad faith or repetitive misconduct. No such claim is made here.
Second, even if the proper analysis under § 52-593 were to require a finding that plaintiff's mistake was reasonable, there seems to be no doubt here that plaintiff's original failure to name Auger's was exactly that; she evidently did not know about Auger's role when she filed suit. The unreasonableness cited by Auger's resides in defendant's subsequent failure to avoid the otherwise applicable statute of limitations, by failing to sue Auger's in the original suit under § 52-102a(c) after the owner impleaded Auger's as a third-party defendant. This theory stretches the " reasonable and honest mistake gloss" too far. No case has yet held that a plaintiff forfeits her right to invoke the protections of the savings statute if she fails, in the original lawsuit brought by her against the wrong defendant, to take advantage of an opportunity belatedly to bring a direct claim against the right defendant under 52-102a. Absent on-point appellate authority instructing otherwise, this court believes that it is inappropriate to limit the availability of this remedial statute under these circumstances.
Finkle held that § 52-593 was unavailable to a plaintiff who did sue the right defendant in the original lawsuit, but failed to amend her complaint to allege the correct factual grounds against that defendant. See Finkle v. Carroll, supra, 315 Conn. at 836-41. Defendant's brief does not mention Finkle, and does not ask the court to extend its holding to reach the circumstances of the present case, perhaps because Auger's (unlike the town of Watertown in Finkle) was never sued by plaintiff in the original lawsuit.
Defendant suggested during oral argument on its motion that its construction of § 52-593 advances the policy goal of promoting efficiency in litigation. This may or may not be true. One result of imposing stricter limitations on the availability of § 52-593, especially a limitation making the statute is unavailable if the mistake made by the plaintiff's lawyer was not a " reasonable" one, is that the unsuccessful plaintiff may elect to file yet a third lawsuit--this time against the lawyer whose conduct resulted in the underlying case being lost. Replacing a garden variety " fall-down" case with a legal malpractice case (requiring, among other things, trial of the fall-down case as an element of the larger case) cannot be considered an efficient outcome. Similarly, to the extent that Auger's was required to participate in discovery proceedings as a third-party defendant in the original case before it was terminated, it would be inefficient to permit duplicative discovery in this re-filed case, but such duplication should be relatively easy to avoid through proper case management.
Nor, under these circumstances, can Auger's invoke any of the usual claims of prejudice (e.g., late notice, faded memories, etc.) made by parties sued after the statute of limitations has run; its argument here rests on the point that plaintiff was entitled to bring direct claims against it in that case, after the two-year limitations period had passed. Auger's argument, at bottom, is that plaintiff has used the wrong procedure to raise its late claims.
More broadly, it is accurate to say that systemic " efficiency" probably decreases in inverse proportion to procedural limitations imposed on lawsuits brought under § 52-593. This may be a compelling point in certain procedural contexts. But it is not a point that will always win the day, because efficiency is not the only important value served by our justice system. Another important value is the notion that cases should be decided on their merits whenever possible. See, e.g., Fairfield Merrittview Ltd. Partnership v. City of Norwalk, 320 Conn. 535, 554 n.22, 133 A.3d 140 (2016); Andrew Ansaldi Co. v. Planning and Zoning Commission, 207 Conn. 67, 75-76, 540 A.2d 59 (1988) (Shea, J., concurring); Viejas Band of Kumeyaay Indians v. Lorinsky, 116 Conn. 116 Conn.App. 144, 157, 976 A.2d 723 (2009). That precept should prevail where, as here, the efficiency gain seems highly dubious.
The court also rejects defendant's claim that plaintiff is precluded from invoking the provisions of § 52-593 here because she failed to cite the statute in her complaint and/or reply to defendant's limitations defense. Defendant cannot claim to have been misled or confused at any time due to plaintiff's failure to make express reference to the statute in its pleadings. It has had a full and fair opportunity to litigate the issue, and suffered no prejudice. See, e.g., Rocco v. Garrison, 268 Conn. 541, 557, 848 A.2d 352 (2004); Spears v. Garcia, 66 Conn.App. 669, 676, 785 A.2d 1181 (2001), aff'd on other grounds, 263 Conn. 22, 818 A.2d 37 (2003).
Defendant's second argument, based on res judicata, is also without merit. Auger's was not a party adverse to plaintiff in the original case; plaintiff made no claims of any kind against Auger's; and the original case was adjudicated on grounds that did not involve Auger's at all. Indeed, Auger's is never mentioned in the five-page memorandum of decision granting summary judgment in favor of the defendant-owner, and no judgment was entered for or against Auger's in the original case. The rules of res judicata therefore do not apply. See American Law Institute, Restatement of Judgments (Second) § 17 (1982).
Judgment in favor of the defendant-owner was entered on October 29, 2015. (#126.00) The defendant-owner withdrew its third-party complaint against Auger's on December 5, 2015 (#127.00).
The motion for summary judgment is denied.