Opinion
No. CV 03 0520308 S
December 14, 2004
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT
I
The parties in the present matter are asking the court to decide whether General Statutes § 52-592, the accidental failure of suit statute, permits a plaintiff to maintain a second action when the first matter was dismissed for lack of personal jurisdiction.
[Editor's Note: Footnote 1, which recites the language of General Statutes § 52-592(a), has not been included in the reported opinion.]
The plaintiff brought suit against this defendant and another as a result of injuries sustained in a motor vehicle accident on April 10, 2000. She delivered her summons and complaint to the marshal on March 28, 2002, a date prior to the expiration of the statute of limitations. The marshal mailed the summons to the defendant on April 8, 2002 and obtained a green card noting that she received it on April 11, 2002. The defendant moved to dismiss based on improper service and the court, Peck, J. granted the motion on August 3, 2002.
Service was properly made on the other defendant.
The plaintiff then instituted this action on March 25, 2003 pursuant to General Statutes § 52-592(a). The defendant moved for summary judgment based upon the special defense that the action was time barred pursuant to § 52-584, the statute of limitations for personal injuries caused by negligence. The defendant maintains that as the original action was never properly served on her prior to the expiration of the two-year statute of limitations, this action must fail as a matter of law.
[Editor's Note: Footnote 3, which recites the language of General Statutes § 52-584, has not been included in the reported opinion.]
II. A.
Summary judgment is appropriate on statute of limitation grounds when the "material facts concerning the statute of limitations [are] not in dispute . . ." Burns v. Hartford Hospital, 192 Conn. 451, 452, 472 A.2d 1257 (1984). "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 . . . [T]he 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 him 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." (Citations omitted; internal quotation marks omitted.) Barrett v. Montesano, 269 Conn. 787, 791-92, 849 A.2d 839 (2004).
Section 52-592(a) states, in part, that "if any action, commenced within the time limited by law . . . has failed to be tried . . . because of insufficient service . . . due to unavoidable accident or the default or neglect of the officer to whom it was committed . . . the plaintiff . . . may commence a new action within one year . . ." (Emphasis added.) While it seems apparent that the original certified mail service was on its face untimely, General Statutes § 52-593 provides for a fifteen-day window if the process to be served is delivered to a marshal and is served within fifteen days. As noted above, this was done in this case and accordingly had the method of service been proper, the plaintiff would clearly have been saved by § 52-593(a). The defendant maintains that as the service was not proper, it was not "commenced" and accordingly is not saved by the statute.
[Editor's Note: Footnote 4, which recites the language of General Statutes § 52-593a, has not been included in the reported opinion.]
B.
In Davis v. Family Dollar Store, 78 Conn.App. 235, 826 A.2d 262, (2003), appeal granted in part, 266 Conn. 912, 832 A.2d 69, appeal dismissed, 271 Conn. 655, 859 A.2d 25 (2004), the appellate court held that § 52-592 could not be used to allow a second action when the first action was never served. In Davis, the plaintiff had delivered the papers to the marshal three days prior to the expiration of the statute of limitations but the marshal never served the papers. The court held "[b]ecause 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. Davis must be read together with Rocco v. Garrison, 268 Conn. 541, 848 A.2d 352 (2004) in which our Supreme Court discussed a scenario similar to that in this case in which service had been only partly made, although there under rule 4(d)(2) of the Federal Rules of Civil Procedure. As the service was incomplete, the District Court granted a motion for summary judgment based on a statute of limitations defense. The plaintiff then filed a new action pursuant to § 52-592 and that action was dismissed on grounds similar to those argued by the defendant herein: as the first action had not been commenced due to lack of proper service, the savings statute was not applicable.
Rule 4(d)(2) states in part:
An individual, corporation, or association that is subject to service under subdivision (e), (f) or (h) and that 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, if an individual, or else to an officer or managing or general agent (or other agent authorized by appointment or law to receive service of process) of a defendant subject to service under subdivision (h);
(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, by means of a text prescribed in an official form promulgated pursuant to Rule 84, 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, which shall be at least 30 days from the date on which the request is sent, or 60 days from that date if the defendant is addressed outside any judicial district of the United States; 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 located within the United States fails to comply with a request for waiver made by a plaintiff located within the United States, the court shall impose the costs subsequently incurred in effecting service on the defendant unless good cause for the failure be shown.
In Rocco, while the defendant had been served by certified mail pursuant to the rule on July 14, 2000, four days prior to the expiration of the statute of limitations, "[t]he defendant, however, did not sign and return the waiver of service form as requested, and the statute of limitations lapsed before the plaintiff's counsel could effect formal service of process." Id., 546.
The Supreme Court discussed the defendant's argument that "commencement" under the statute required a properly served process. It held 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 . . . cannot be construed to mean good, complete and sufficient service of process, as the defendant contends." (Citation omitted; internal quotation marks omitted.) Id., 550-51.
The court added that while the service in the first case was insufficient to meet the requirements of § 52-584, as the defendant had received actual notice of the action within the statutory time period, the matter had commenced for the purpose of the savings statute. Id., 551. The defendant herein argues that as she did not receive the summons and complaint until April 11, 2002, one day after the statute of limitations had expired. CT Page 19000 Rocco, while instructive, is distinguishable and the matter is controlled by the ruling in Davis.
There is one last piece of this analysis however. The defendant's argument, of course, ignores the fifteen-day grace period of § 52-593a. There is no dispute that the defendant was served by certified mail within fifteen days of delivery to the marshal. The statute states that the process must be served "as provided by law." There are, of course, many methods in which a summons may be served. See generally, General Statutes § 52-45a et. seq. While personal service or abode service, § 52-54, is required in many actions, service upon the Commissioner of Motor Vehicles with a copy by certified mail to the operator is permitted under § 52-63. Such method was utilized by the marshal in the first instance; such method is one that is "provided by law." To hold that the phrase "provided by law" means validly served would, as noted in Rocco, render the words of § 52-592 of "insufficient service . . . due to unavoidable accident or the default or neglect of the officer to whom it was committed" meaningless. (Internal quotation marks omitted.) Rocco v. Garrison, 268 Conn. 549. The defendant had actual notice of the action, albeit not in compliance with § 52-57a, and thus under Rocco, it was commenced.
Thus, pursuant to the ruling in Rocco, this court denies the defendant's motion for summary judgment as the matter was "commenced within the time period permitted by law."
Berger, J.