Opinion
No. CV-05-4003250 S
January 12, 2006.
MEMORANDUM OF DECISION #147
The defendant Bristol Hospital has moved for summary judgment as to count two and count five of the plaintiffs' complaint on the grounds that the two year substantive statute of limitations contained in General Statutes § 52-555 (a) expired prior to the date the plaintiffs commenced suit. The defendant argues that the ex parte procedure contained in General Statutes § 52-190a (b) to obtain an automatic extension of the statute of limitations in § 52-555 (a) deprives the defendant Bristol Hospital of a vested property right without due process of law in violation of the Fourteenth Amendment of the United States Constitution. The defendant also claims that because the plaintiff Julie Desimini's individual claim for loss of consortium was not included in the petition for 90-day extension filed under § 52-190a (b) by the Estate of Carmine Desimini, it was not timely filed. Finally, the defendant contends that General Statutes § 52-593a does not apply to the statute of limitations contained in § 52-555. The court concludes that the defendant is not entitled to a judgment as a matter of law and accordingly denies the motion for summary judgment.
General Statues § 52-555 (a) provides: "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."
General Statues § 52-190a (b) provides: "Upon petition to the clerk of the court where the action will be filed, an automatic ninety-day extension of the statute of limitations shall be granted to allow the reasonable inquiry required by subsection (a) of this section. This period shall be in addition to other tolling periods."
General Statutes § 52-593a provides: "(a) Except in the case of an appeal from an administrative agency governed by section 4-183, a cause or right of action shall not be lost because of the passage of the time limited by law within which the action may be brought, if the process to be served is personally delivered to a state marshal authorized to serve the process and the process is served, as provided by law, within thirty days of the delivery. (b) In any such case, the state marshal making service shall endorse under oath on such state marshal's return the date of delivery of the process to such state marshal for service in accordance with this section."
FACTS AND PROCEDURAL HISTORY
In this wrongful death action, Julie Desimini, as Executrix of the Estate of Carmine Desimini, and, individually, alleges that three defendants, including Bristol Hospital, committed medical malpractice that caused the death of Carmine Desimini on September 7, 2002. On August 10, 2004, Julie Desimini, in her capacity as executrix only, sought, and obtained, a 90-day extension of the applicable statute of limitations from the clerk of the Superior Court pursuant to § 52-190a. The defendant was served on December 7, 2004. The original marshal's return did not state the date of delivery of the process to the marshal. Subsequently, the marshal filed a supplemental return and provided an affidavit which indicate that the process was delivered to her on December 3, 2004.
DISCUSSION
"Summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine interest to any material fact and that the moving party is entitled to judgment as a matter of law." (Internal quotation marks omitted.) Maffucci v. Royal Park Ltd. Partnership, 243 Conn. 552, 554, 707 A.2d 15 (1998); Bruttomesso v. Northeastern Connecticut Sexual Assault Crisis Services, Inc., 242 Conn. 1, 5, 698 A.2d 795 (1997).
"[T]he party attacking a validly enacted statute . . . bears the heavy burden of proving its unconstitutionality beyond a reasonable doubt and we indulge in every presumption in favor of the statute's constitutionality." (Internal quotation marks omitted.) State v. Higgins, 265 Conn. 35, 62, 826 A.2d 1126 (2003).
CLAIM THAT § 52-190a (b ) VIOLATES DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT
The defendant's well-crafted argument on this issue can be distilled to the following. The two year statute of limitations contained in § 52-555, a statutorily created right of action, is a substantive property right with gave a right of action to a plaintiff and an equivalent right to an exemption to the defendant. It argues that the ex parte procedure in § 52-190a (b), by extending the statute of limitations by 90 days, deprives a defendant of its vested property right to an exemption, if suit is not brought within two years. The defendant notes that § 52-190a (b) does not provide a mechanism for notice to a defendant of the filing of a petition for an automatic 90-day extension. Accordingly, defendant claims it is deprived of a vested property right in violation of the due process clause of the Fourteenth Amendment.
Both § 52-555, the wrongful death statute, and § 52-190a (b), the automatic extension statute, were in effect at the time of the decedents death. Subsection (a) of § 52-190a specifically provides that it is applicable to a "civil action . . . filed to recover damages resulting from . . . wrongful death . . . in which it is alleged that such . . . death resulted from the negligence of a health care provider. . . ."
"The defendant's right of defense, which affected its substantial interests, became fixed in present enjoyment and available to the defendant under the statute in effect at the time of the injury. . . ." (Emphasis added; internal quotation marks omitted.) Hillier v. East Hartford, 167 Conn. 100, 109, 355 A.2d 1 (1974). In this case, there is more than one applicable statute in effect at the time of the injury. When considering an extension of the time limitation contained in § 52-555 by § 52-592, the accidental failure of suit statute, our Supreme Court has stated, "the time limitation in the wrongful death statute must be read together with the extension statute. The extension statute operated as a modification of the wrongful death statute. . . ." Isaac v. Mount Sinai Hospital, 210 Conn. 721, 728, 557 A.2d 116 (1989).
The defendant relies on the case of Ecker v. West Hartford, 205 Conn. 219, 530 A.2d 1056 (1987) for the proposition that since § 52-555 created a cause of action that did not exist in common law, the time limitation therein cannot be waived or extended. The Supreme Court also dealt with its holding in Ecker in the Issac case. The Court stated, "our statement in Ecker v. West Hartford, supra, that where a time limitation is contained in a statute creating a right of action that did not exist at common law, then the remedy exists only during the prescribed period and not thereafter, cannot be considered in isolation." Isaac v. Mount Sinai Hospital, supra, 210 Conn. 731.
This court concludes that the time limitation provided for in § 52-555 must be read in conjunction with § 52-190a (b). "Section 52-190a (b) grants an automatic ninety day extension of the statute, making it clear that the ninety days is in addition to other tolling periods." Girard v. Weiss, 43 Conn. App. 397, 418, 682 A.2d 1078 cert. denied, 239 Conn. 946, 986 A.2d 121 (1996). The two year statute of limitations in § 52-555 is not determinate, it is automatically extended by 90 days by the utilization of § 52-190a (b). Effectively, the defendant has property rights, not in a two year limitation period, but in a statute of limitations of two years and 90 days. Since the defendant in this case does not have a vested property right in a two year statute of limitations, the automatic extension in § 52-190a (b) does not give rise to a violation of the defendant's constitutional rights.
The issue of due process and § 52-190a (b) was also raised in the case of Sneath v. Roche, Superior Court, judicial district of Hartford, Docket No. CV 98 0585453 (March 2, 2004, Hennessey, J.T.R.) (36 Conn. L. Rptr. 691). In that case, Judge Hennessey found that the 90-day extension to the limitation provided by § 52-190a (b) did not unconstitutionally deprive a defendant of a vested property right. In this case, the defendant asks the court not to follow the holding in Sneath, because, it submits, Judge Hennessey failed to address the Supreme Court's holding in Hillier v. East Hartford, supra, 167 Conn. 100 (1974).
In Hillier the plaintiff brought an action under § 13a-149 against a municipality to recover for injuries sustained as a result of a fall on an icy sidewalk. The plaintiff did not give notice of her injury to the defendant within 30 days as required by the statute. In fact, the defendant municipality did not receive notice until more than a year after the injury, which is also the approximate time when the plaintiff brought a lawsuit seeking damages for her injuries. After suit was brought, the legislature passed a special act which validated the late notice given to the municipality. The Court found that the defendant's right of defense was fixed under the statute in effect at the time of injury, and that the later special act deprived the defendant of its right in violation of the state and federal constitutions.
The holding in Ecker upon which the defendant relies is easily distinguished from the case at bar. Both § 52-555 and § 52-190a (b) were in effect at the time of the decedent's death. As stated earlier, they provided, in actuality, a statute of limitation of two years and 90 days. Unlike in Ecker, there has been no legislative action after the plaintiff's death which has affected the defendant's rights.
After the Sneath case was decided, our Supreme Court in the case of Barrett v. Montesano, 269 Conn. 787, 849 A.2d 839 (2004), construed § 52-190a to apply to both a "statute of limitations" and a "statute of repose." The Court stated, "we acknowledge that § 52-190a generally is not viewed as a remedial statute because it was enacted for the benefit of health care provider and not injured plaintiffs. See Bruttomesso v. Northeastern Connecticut Sexual Assault Crisis Services, Inc., 242 Conn. 1, 15, 698 A.2d 795 (1997) ("[t]he purpose of the legislation is to inhibit a plaintiff from bringing an inadequately investigated cause of action, whether in tort or in contract, claiming negligence by a heath care provider"). Its purpose, however, is what necessitates the investigation prior to the filing of an action to determine whether there are grounds for a good faith belief that there has been negligence in the care and treatment of the claimant. That additional burden to conduct a reasonable inquiry necessitates the additional ninety days in which to do so, which is essential to ameliorate the `harsh consequences of the occurrence rule. . . . ` DeLeo v. Nusbaum, supra, 263 Conn. 594." Barrett v. Montesano, supra, 269 Conn. 796 (2004).
In light of these comments by our Supreme Court, this court is hard pressed to find that § 52-190a deprives the defendant of its constitutional rights.
TIMELINESS OF THE PLAINTIFF JULIE DESIMINI'S CAUSE OF ACTION FOR LOSS OF CONSORTIUM
In count five of the complaint, the plaintiff Julie Desimini, individually, alleges that as a result of the carelessness and negligence of the defendant Bristol Hospital she has been deprived the consortium of her husband. The petition for extension of the statute of limitations filed pursuant to § 52-190a (b) was filed on behalf of Julie Desimini as administratrix of the Estate of Carmine Desimini only. The defendant Bristol Hospital claims that because the plaintiff's individual claim for consortium was not contained in the petition for extension of the statute of limitations, and because the claim for consortium was filed more than two years after the date of the death, the claim is barred by the two year statute of limitations contained in § 52-555.
This same issue was addressed in Sneath v. Roche, supra, cited earlier. This court agrees with Judge Hennessey's conclusion that a loss of consortium claim is a derivative action that constitutes a part of a wrongful death action. Judge Hennessey explained that: "Section 52-555(b) provides, in relevant part: `Any claim or cause of action for loss of consortium by one spouse with respect to the death of the other spouse, which claim or cause of action may include, without limitation, claims for damages with respect to loss of the society of, affection of, moral support provided by, services provided by, sexual relations with or companionship of the other spouse, suffered because of the death of the other spouse, shall be brought with or joined with the claims and causes of action with respect to the death of the other spouse.' `An action for loss of consortium is derived from the injured [spouses'] cause of action.' Monk v. Lime Rock Associates, Superior Court, judicial district of Litchfield, Docket No. CV 000082466 (November 16, 2000, Matasavage, J.) (28 Conn. L. Rptr. 541, 544). `The postmortem loss of consortium cause of action, although separate and independent as a basis for claiming damages, remains derivative of the claim arising out of injury to the spouse, and it could not come into existence without that injury.' Demarinis v. United Services Automobile Assn. Casualty Ins. Co., 44 Conn. App. 172, 178, 687 A.2d 1305 (1997). `An action for loss of consortium must be joined with the wrongful death action . . . General Statutes [§§] 52-555[(a)] to 52-555[(d)] were enacted as supplement to the wrongful death statute by the Connecticut Legislature, in 1989, for the sole purpose of recognizing a postmortem claim for loss of consortium that did not exist previously in Connecticut and that the statutory scheme did not purport to change the nature of the claim for loss of consortium which had always been recognized as a separate but derivative of a bodily injury sustained by the injured spouse.' (Citations omitted; internal quotation marks omitted.) Monk v. Lime Rock Associates, Superior Court, supra, 28 Conn. L. Rptr. 541. The plaintiff's loss of consortium claim is a derivative action that is understood to constitute a part of the wrongful death action. The plaintiff's loss of consortium claim is, therefore, not untimely because the plaintiff's petition for extension of the statute of limitation extended by ninety days the time in which the plaintiff had to bring her loss of consortium claim." Sneath v. Roche, supra, 36 Conn. L. Rptr. 691.
DO THE PROVISIONS OF § 52-593a APPLY TO A WRONGFUL DEATH ACTION BROUGHT UNDER § 52-555.
As noted earlier, the marshal's return indicates that the summons and complaint were served on the defendant Bristol Hospital on December 7, 2004, two years and 91 days after the decedent's date of death. Even allowing for the 90-day extension under § 52-190a (b), the defendant claims that such service is beyond the statute of limitations. The plaintiffs rely on § 52-593a and they have filed a supplemental return, and an affidavit from the marshal, indicating that the summons and complaint were delivered to the marshal on December 3, 2004, prior to the expiration of the statute. The defendant Bristol Hospital claims that because the original marshal's return did not state under oath the date of delivery of the summons and complaint to the marshal, § 593a (b) is inapplicable, and consequently the late service is not saved.
The issue of compliance with § 52-593a (b) was discussed in Roldan v. Avanti Screw, Inc., Superior Court, judicial district of New Britain, Docket No. CV 03 0521915 (December 28, 2004, Berger, J.) (38 Conn. L. Rptr. 466). This court agrees with Judge Berger's conclusion that the endorsement of the date of delivery on the original return is directory and not mandatory. The plaintiff has demonstrated substantial compliance with § 52-593a (b).
The defendant, Bristol Hospital, further argues that § 52-593a can not extend the substantive two year statute of limitations contained in § 52-555. The cases cited by the defendant on this issue pertain to the relationship between § 52-593a and causes of action which implicate sovereign immunity. See Fabiano v. Wolcott, Superior Court, judicial district of Waterbury, Docket No. CV 97 0140495 (September 8, 1997, Pellegrino, J.) (20 Conn. L. Rptr. 564). The cases cited by the defendant are inapposite to a consideration of the wrongful death statute.
In the previously cited case of Isaac v. Mount Sinai Hospital, supra, 210 Conn. 721, our Supreme Court held that § 52-592, the accidental failure of suit statute, was a remedial statute. The Court further held that § 52-592 was an extension statute that operated as a modification of the wrongful death statute. Id., 728. Our Supreme Court has also concluded that § 52-593a is a remedial statute. See Nine State Street, LLC. v. Planning Zoning Commission, 270 Conn. 42, 850 A.2d 1032 (2004).
Since our Supreme Court has held that the remedial statute § 52-592 applies to § 52-555, this court concludes § 52-593a, a remedial statute, should also apply to extend the statute of limitations contained in § 52-555 which, in this case, has been extended by the application of § 52-190a (b).
For the foregoing reasons, the motion for summary judgment is denied.