Opinion
No. FST CV 106004150 S
April 27, 2011
MEMORANDUM OF DECISION
Presently before the court is a motion for summary judgment filed by the defendant, Deborah Stevens, in her role as the administrator of the estate of Essie May Byrd. (#110.00.) This action arises out of a motor vehicle accident that allegedly occurred on February 1, 2008, in Stamford. The plaintiff, Joseph D. Franchina, Jr., alleges that while driving his automobile on Smith Street, he was struck head on by an automobile that was being driven by Byrd the wrong way on a one-way street. The plaintiff's two-count revised complaint dated June 4, 2010 alleges claims of negligence and reckless as a result of Byrd's conduct. According to the marshal's return of service, the plaintiff commenced this action by serving process on the defendant administrator on February 22, 2010.
On January 4, 2011, the defendant filed a motion for summary judgment and a supporting memorandum of law. The motion claims that the defendant is entitled to judgment as a matter of law because this action is time barred under the statutes of limitations set forth in General Statutes §§ 52-584 and 45a-375. On March 9, 2011, the plaintiff filed a memorandum of law in opposition to the defendant's motion. The plaintiff's memorandum of law in opposition attaches the affidavit of the plaintiff's counsel, Attorney David M. McHugh. In his affidavit, Attorney McHugh recounts the events surrounding the service of process that occurred in this case. On March 21, 2011, the defendant filed a reply to which the plaintiff responded. The court heard argument in this matter at short calendar on March 21, 2011.
The defendant's motion and the plaintiff's opposition memorandum also attach various court documents from this case and the proceedings before the Stamford Probate Court regarding the opening of Byrd's estate. The plaintiff's memorandum of law in opposition also includes a brief excerpt from the legislative history regarding the adoption of General Statutes § 52-593a.
A review of the evidence attached to the parties' respective pleadings establishes the following undisputed facts. The automobile accident giving rise to this lawsuit occurred on February 8, 2008. As this is an action sounding in negligence, the parties agree that this matter is governed by the two-year statute of limitations found in § 52-584. On Friday, January 29, 2010, the plaintiff's counsel delivered a writ, summons and complaint to Marshal Michael Copertino naming Essie May Byrd as the sole defendant. However, unbeknownst to the plaintiff's counsel, Byrd had died on December 15, 2009. When Marshal Copertino attempted to serve process on the afternoon of January 29, 2010, at Byrd's former place of abode at 300 Tresser Boulevard in Stamford, he learned of her demise and did not leave a copy of the process at that address.
Although the plaintiff claims that there are outstanding issues of fact in this matter, the only factual dispute noted by the plaintiff is whether the "operative" writ for statute of limitations purposes is that which the marshal attempted to serve on Byrd on January 29, 2010, or the writ that was served on the defendant on February 22, 2010. There is no dispute regarding the date of Byrd's death or any of the other relevant dates regarding the attempts to serve process on Byrd and the defendant. Accordingly, the court finds that there are really no facts in dispute in this matter and that a determination regarding the "operative" process is a question of law and not a question of fact.
On Monday, February 1, 2010, after learning of Byrd's death from Marshal Copertino, the plaintiff's counsel filed an application in Stamford Probate Court to appoint an administrator for Byrd's estate on Monday, February 1, 2010. On February 18, 2010, the Stamford Probate Court appointed Deborah Stevens as the administrator of Byrd's estate. In his affidavit plaintiff's counsel states: "On the next morning, February 19, 2010, I contacted Marshal Copertino, who still had the original Writ, Summons and Complaint dated January 29, 2010 in his hands, and requested that he pick up the Probate Court documents from me together with the supplemental/amended Summons and Complaint directed to the Administratrix, [the defendant], dated February 18, 2010 and serve both the original Writ, Summons and Complaint dated January 29, 2010 and the supplemental Summons and Complaint and serve all the foregoing on [the defendant]." Marshal Copertino served these documents on the defendant administrator on February 22, 2010. Additionally, the plaintiff's counsel attests that when he changed the complaint and summons "the sole purpose . . . was to identify [the defendant] as the duly appointed Administratrix of the Estate of Essie Mae Byrd . . . In doing so, it was not my intention to replace the Writ, Summons and Complaint in the possession of Marshal Copertino delivered to him on January 29, 2010, but, rather, only to supplement said Writ, Summons and Complaint by properly identifying the individual to be served." (Emphasis in original.)
LEGAL 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." (Internal quotation marks omitted.) Provencher v. Enfield, 284 Conn. 772, 790-91 (2007). "[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way . . . [A] summary disposition . . . should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party." (Citations omitted; internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815 (2003). The burden is on the moving party to demonstrate an absence of any triable issue of material fact and "[t]o satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19 (2006). "Summary judgment may be granted where the claim is barred by the statute of limitations." Doty v. Mucci, 238 Conn. 800, 806 (1996). Summary judgment is appropriate on statute of limitations grounds when the "material facts concerning the statute of limitations [are] not in dispute . . ." Burns v. Hartford Hospital, 192 Conn. 451, 452 (1984).
As the plaintiff alleges that the traffic accident giving rise to this matter occurred on February 8, 2008, and the defendant was not served with process until February 22, 2010, this case was clearly commenced outside the two-year statute of limitations. Consequently, the defendant is entitled to judgment as a matter of law on statute of limitations grounds unless the plaintiff can avail himself of either a statute of limitations tolling doctrine or a statutory savings provision.
In opposition to the motion for summary judgment, the plaintiff first argues that General Statutes § 52-593a operates to extend the period of the statute of limitations. That statute 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." The plaintiff's attorney argues that since he gave the process to the marshal on January 29, 2010, and process was served on the defendant on February 22, 2010, less than thirty days later, § 52-593a operates to save his case. The defendant argues that the plaintiff cannot avail himself of the saving mechanism found in § 52-593a because the process given to the marshal on January 29, 2010 listed Byrd, not the defendant, as the defendant in that action. The defendant administrator also notes that the process naming her as a defendant was not given to the marshal until after the expiration of the statute of limitations, and claims that accordingly, § 52-593a cannot operate to save the plaintiff's case.
General Statutes § 52-593a was amended by Public Acts 2010, No. 10-36 and 10-178. These Public Acts took effect on July 1, 2010 and October 1, 2010, respectively. As the service of process at issue in this case took place before the change in the law, the previous version of the statute applies here. Nevertheless, the changes in the statutory text implemented by these Public Acts did not alter the substance of the law. The Public Acts in question merely changed the name of the person making the service from "state marshal" to "officer."
Both of the parties contend that there are no Connecticut cases on point. However, at least one Superior Court judge has considered a nearly identical fact pattern. In Finley v. Ginsberg, Superior Court, judicial district of Fairfield, Docket No. CV 04 4004657 (October 25, 2005, Skolnick, J.) ( 40 Conn. L. Rptr. 184), the plaintiff suffered injuries during a traffic accident on November 14, 2002 which was allegedly caused by the defendant's negligence. On November 11, 2004, the plaintiff delivered process to a marshal with the intent of serving the defendant. On November 15, 2004, the marshal attempted service only to learn that the intended defendant had died. Instead of serving the process, the marshal returned the writ of summons to the plaintiff's attorney. The plaintiff's counsel then prepared a new writ of summons with the decedent's executor named as defendant. This new writ of summons was given to the marshal on November 18, 2004, and served on the defendant executor on November 22, 2004. The defendant executor then moved for summary judgment on the ground that the action was time barred. In opposition to the summary judgment motion, the plaintiff argued that § 52-593a operated to save the case from being barred by the statute of limitations. The court rejected that argument, stating "[a]lthough on November 11, 2004, the marshal was given the original writ to be served on [the deceased tortfeasor], he was not given the operative writ to serve on the defendant, the executor of [the deceased tortfeasor's] estate, until November 18, 2004. Although the savings provisions of General Statutes § 52-593a would ordinarily extend the limitations period if the writ was delivered to the marshal within the limitations period, the operative writ was not delivered to the marshal until after that time." Id., 185.
The conclusion of the Finley court is supported by the discussion in a recent Connecticut Supreme Court case addressing the scope of § 52-593a. In Tayco Corp. v. Planning Zoning Commission, 294 Conn. 673 (2010), the plaintiff's attorney delivered the process to the marshal before the expiration of the statute of limitations but told the marshal to wait a few days before serving process. When the marshal was finally instructed to serve process, the statute of limitations had expired, but the marshal still served process within thirty days of when he received it. When ruling that the plaintiff could not invoke § 52-593a to avoid the statute of limitations, the Supreme court stated that "[b]y allowing the marshal additional time in which to locate and serve a party, § 52-593a provides a method for ensuring correct service of process without infringing on a litigant's ability to timely file even when he or she uses the entire amount of time allotted to bring an action pursuant to the applicable statute of limitations." (Emphasis in original.) Id., 685. The Supreme Court further "conclude[d] that § 52-593a(a) does not give the litigant time beyond the statute of limitations in which to deliver process to the marshal for service. Such a reading would run contrary to the intent behind § 52-593a(a) and would frustrate the purpose of statutes of limitation. Moreover, such an interpretation could yield the absurd result of allowing a litigant to finish the steps of commencing an action after the expiration of the statute of limitations." (Emphasis in original.) Id., 686.
In the present case, the plaintiff gave the process to the marshal with the intent of having the marshal serve it before the expiration of the statute of limitations. Nevertheless, the plaintiff had not done everything that he needed to do in order to commence the action because the plaintiff's writ of summons and complaint did not name the correct defendant. Consequently, the plaintiff had to complete certain additional steps after the expiration of the statute of limitations. These steps included applying to the probate to have an administrator appointed; issuing a new summons and complaint naming the administrator as the defendant; and delivering the new process to the judicial marshal so that the administrator could be served with process. Because all the additional steps were taken after the expiration of the statute of limitations, the court finds that § 52-593a cannot operate the plaintiff to extend the statute of limitations.
Although the Finley court held that § 52-593a could not save the plaintiff's action, it nevertheless denied the defendant's motion for summary judgment. The court found that the case was saved by the accidental failure of suit statute, General Statutes § 52-592. That statute 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 . . . (b) When any action has been brought against an executor or administrator or continued against an executor or administrator after the death of the defendant and has failed for any of the causes listed in subsection (a) of this section, the plaintiff, or his executor or administrator in case a cause of action survives, may commence a new action within six months."
The Finley court primarily relied on two appellate cases, Contadini v. DeVito, 71 Conn.App. 697, cert. denied, 262 Conn. 918 (2002) and Rocco v. Garrison, 268 Conn. 541 (2004). In Contadini, the marshal made abode service on the defendant's decedent, who neither the marshal nor the plaintiff realized was dead. Following the court's granting of a motion to dismiss the lawsuit that was filed against the defendant's decedent, the plaintiff brought a second lawsuit against the defendant in his role as executor of his decedent's estate. The trial court granted summary judgment in favor of the defendant on the basis that the accidental failure of suit statute did not apply because actions brought against deceased persons are legally void. The Appellate Court reversed the decision of the trial court, stating that "[t]he original action in the present case, which did not name the representative of the deceased defendant, was . . . an `action' for the purposes of § 52-592 . . . The individual defendant named in the first action in this case had . . . [a] close . . . identity with the executor defendant in the second action . . . That identity of interest allows . . . [for a] nominal change of parties between the two actions in this case . . . The allegations of the plaintiff's cause of action in the original action and the second action are identical and, therefore, are the same cause of action for purposes of § 52-592." Id., 701-02. Consequently, the Appellate Court held "that the first action, which was commenced within the statutory time period, legally existed when it was brought, despite the fact that the defendant named in that action had died prior to the commencement of the action." Id., 702.
In Rocco v. Garrison, supra, 268 Conn. 541, the Supreme Court ruled that commencing an action in regard to § 52-592 is not exactly the same as commencing an action for ordinary purposes. In Rocco, the plaintiffs attempted to bring suit against an out-of-state defendant in federal court by using the procedure established by Rule 4(d)(2) of the Federal Rules of Civil Procedure, which allows the parties to waive formal service of process in order to save costs. The plaintiffs' counsel sent the appropriate papers to the defendant's home via certified mail within the applicable statute of limitations period, but the defendant did not sign and return the waiver form. By the time that the plaintiffs had legally served process on the defendant, the statute of limitations had expired. The plaintiffs then brought a lawsuit under § 52-592 in Connecticut Superior Court.
Rule 4(d) of the Federal Rules of Civil Procedure provides in relevant part: "(2) An individual . . . [who] is subject to service . . . and [who] receives notice of an action in the manner provided in this paragraph has a duty to avoid unnecessary costs of serving the summons. To avoid costs, the plaintiff may notify such a defendant of the commencement of the action and request that the defendant waive service of a summons. The notice and request
(A) shall be in writing and shall be addressed directly to the defendant . . .
(B) shall be dispatched through first-class mail or other reliable means;
(C) shall be accompanied by a copy of the complaint and shall identify the court in which it has been filed;
(D) shall inform the defendant . . . of the consequences of compliance and of a failure to comply with the request;
(E) shall set forth the date on which the request is sent;
(F) shall allow the defendant a reasonable time to return the waiver . . . and
(G) shall provide the defendant with an extra copy of the notice and request, as well as a prepaid means of compliance in writing.
"If a defendant . . . fails to comply with a request for waiver . . . the court shall impose the costs subsequently incurred in effecting service on the defendant unless good cause for the failure be shown . . ."
The defendant in Rocco argued that § 52-592 did not apply because the first action had never been legally commenced. When rejecting this argument, the Supreme Court stated that "[t]he defendant's interpretation of § 52-592 would render a key portion of that statute meaningless. If the savings statute requires effective commencement of the original action, and commencement requires valid service of process, as the defendant argues, then any failure of service of process would require us to conclude that no action had been commenced and that the statute does not apply. This would render superfluous one of the principal purposes of the savings statute, namely, to save those actions that have failed due to insufficient service of process. Moreover, 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. To accept the view that improper or insufficient service defeats such an action would undermine the statute's clear and unambiguous meaning and preclude the filing of a second action. We therefore conclude that the term `commenced,' as used in § 52-592 to describe an initial action that `has failed . . . to be tried on its merits because of insufficient service; `General Statutes § 52-592(a); cannot be construed to mean good, complete and sufficient service of process, as the defendant contends." (Emphasis in original.) Rocco v. Garrison, supra, 268 Conn. 550-51.
In reliance on Rocco, the Finley court held that the plaintiff in that matter "was not required to effect `good, complete, and sufficient service of process' on [the defendant's decedent] to commence an action for the purposes of § 52-592. [The plaintiff] delivered the writ and summons to the marshal, on November 11, 2004, before the statute of limitations expired. The marshal then attempted service on [the defendant's decedent] but learned of [the defendant's decedent's] death and returned the writ and summons unserved to [the plaintiff's] attorney. Since [the defendant's decedent] was dead at the time of service, sufficient service . . . was an impossibility. Therefore, the first action failed to be tried on its merits because of the impossibility of service." Finley v. Ginsberg, supra, 40 Conn. L. Rptr. 186.
The defendant urges that the Appellate Court's holding in Davis v. Family Dollar Store, 78 Conn.App. 235, cert. granted, 266 Conn. 912, (2003), appeal dismissed, 271 Conn. 655 (2004) requires the court grant the defendant's motion for summary judgment. In Davis, the plaintiff delivered a writ of summons and complaint to the marshal within the applicable statute of limitations period, but the marshal never served the defendant. Six months later, the marshal returned this process to the plaintiff. By this time, the statute of limitations had expired. The plaintiff then attempted to bring a lawsuit under § 52-592. The Appellate Court held that the Davis plaintiff could not avail herself of the accidental failure of suit statute because "[t]he language of § 52-592 requires a plaintiff to have commenced an original action before the statute can be applied to save a subsequent action." (Emphasis in original.) Id., 239-40. The Appellate Court stated: "Because the writ of summons and complaint were never served on the defendant, the original action did not commence and, therefore, § 52-592 does not authorize another action to be filed or to extend any statute of limitations." Id., 241.
The defendant argues that the holding in Davis prevents the plaintiff in this case from utilizing § 52-592 to save her action because the writ of summons and complaint were neither served on Byrd nor on the defendant administrator before the expiration of the statute of limitations, and, as a result, no action was ever legally commenced. It is well established law that "[i]n Connecticut, an action is commenced when the writ, summons and complaint have been served upon the defendant." (Internal quotation marks omitted.) Aqleh v. Cadlerock Joint Venture II, L.P., 299 Conn. 84, 93 n. 7 (2010). Nevertheless, as noted above, in Rocco v. Garrison, supra, which was decided after Davis, the Supreme Court held that commencing an action in regard to § 52-592 is not exactly the same as commencing an action for ordinary purposes.
Although the Finley court did not discuss the applicability of the statute of limitations found in § 45a-375, at least one Superior Court judge has addressed the interplay between § 45a-375 and § 52-592. Section 45a-375(c) provides in relevant part: "no claim may be presented and no suit on such claim may be commenced against the fiduciary, the estate of the decedent, or any creditor or beneficiary of such estate but within (1) two years from the date of the decedent's death or (2) the date upon which the statute of limitations applicable to such claim, including any period of limitation established pursuant to section 45a-357, would otherwise have expired, whichever shall first occur." Although this action was brought against the defendant administrator within two years of Byrd's death, it was arguably not brought within the two-year statute of limitations period for negligence actions. Accordingly, § 45a-375(c) might be viewed as barring the present action. The issue was considered by the court in Natanzon v. Sikora, Superior Court, judicial district of New Britain, Docket No. CV 05 4004560 (April 5, 2006, Shapiro, J.) ( 41 Conn. L. Rptr. 210). In Natanzon, the marshal purported to make abode service within the statute of limitations on an individual who was already deceased. The court then dismissed the first lawsuit for lack of subject matter jurisdiction. Following this dismissal, the plaintiff brought a second lawsuit against the decedent's administrator. This second lawsuit was brought after the statute of limitations had expired. The defendant administrator argued that the second action was time barred under 45a-375(c) and § 52-584. The court held that the plaintiff's action was saved by the accidental failure of suit statute, § 52-592, and denied the defendant's motion for summary judgment. The court noted the existence of "a long line of cases" holding "that § 52-592(a) is remedial in nature and, therefore, warrants a broad construction." The court finds the reasoning of the Natanzon court to be persuasive and finds that, despite the statute of limitations found in § 45a-375(c), § 52-592 would allow the present case to continue.
At the present time, there are no appellate cases that have interpreted § 45a-375.
Having made the determination that the plaintiff can maintain the present case under § 52-592, it is unnecessary to discuss the other savings statutes that the parties raise in their respective memoranda of law. Nevertheless, in an effort to be comprehensive, the applicability of each of these statutes will be addressed briefly. The first of these statutes is General Statutes § 52-593, which is the wrong defendant statute. Section 52-593 provides 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." The plaintiff argues that § 52-593 can apply to the present case because he originally named the wrong defendant, Byrd, and then named the correct defendant, Byrd's administrator. Although § 52-593 might appear applicable to this case, the Appellate Court has considered that question and found that "[t]he language of the statute means that once the plaintiff discovered that she had filed a complaint against an improper party, she could file the claim against the correct party, and not be barred by the statute of limitations, only `after the termination of the original action' for `failure to name the right person as defendant' in the first action." Billerback v. Cerminara, 72 Conn.App. 302, 306 (2002). Consequently, in order for § 52-593 to be applicable, the first action must have terminated because of the plaintiff naming the wrong defendant. In the present case, there was no action that terminated because Byrd was incorrectly named as a defendant. Accordingly, it appears that § 52-593 would not be applicable to the present case.
It is important to note the difference in the language of § 52-592 and § 52-593. Section 52-592 provides that it applies when an action "has failed one or more times to be tried on its merits because of insufficient service . . . or the action has been otherwise avoided or defeated by the death of a party . . ." whereas § 52-593 requires that "a plaintiff . . . [must have] failed to obtain judgment by reason of failure to name the right person as defendant . . ." Section 52-593 also clearly requires that the first action must have been terminated. This difference in language explains why § 52-592 could apply to the present case even though § 52-593 does not.
The final statutory savings provision raised by the parties is the survival statute, General Statutes § 52-599. That statute provides in relevant part: "(a) A cause or right of action shall not be lost or destroyed by the death of any person, but shall survive in favor of or against the executor or administrator of the deceased person . . . (b) . . . If a party defendant dies, the plaintiff, within one year after receiving written notification of the defendant's death, may apply to the court in which the action is pending for an order to substitute the decedent's executor or administrator in the place of the decedent, and, upon due service and return of the order, the action may proceed." By its plain language, § 52-599 implicates situations where a party dies during the course of litigation. Section 52-599 does not apply in situations where a party died before the commencement of the action, which is what occurred in the present case. See., e.g., Noble v. Corkin, 45 Conn.Sup. 330, 333 (1998) [ 21 Conn. L. Rptr. 547] (holding that "[h]ere, the person named as the defendant was dead before the cause of action had arisen or the action itself had commenced. On these facts, there was no `cause or right of action' to be saved, and no `civil action or proceeding' ever existed"). Therefore, the court concludes that § 52-599 has no application to the facts in this matter.
CONCLUSION
As previously stated, the court finds that the plaintiff can avail himself of the statutory savings provision found in the accidental failure of suit statute, § 52-592. Accordingly, the court denies the defendant's motion for summary judgment.