Opinion
No. CV04-4005457-S
August 10, 2006
MEMORANDUM OF DECISION
Before this court is the Defendant's Motion for Summary Judgment and Memorandum of law filed on November 14, 2005 and the Plaintiff's Memorandum in Opposition to Defendant's Motion for Summary Judgment filed on January 20, 2006. On July 10, 2006, this Court heard oral argument. Having reviewed the briefs filed by the parties and considered the arguments of counsel, this Court grants the Defendant's Motion for Summary Judgment.
In considering a motion for summary judgment, the court must determine whether the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and if so, whether the moving party is entitled to judgment as a matter of law. Practice Book § 17-49. See also Mozeleski v. Thomas, 76 Conn.App. 287, 818 A.2d 893, cert denied, 264 Conn. 904 (2003). "`In deciding a motion for summary judgment, the 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.'" Mozeleski v. Thomas, supra, 289-90 (citing H.O.R.S.E. of Connecticut v. Washington, 258 Conn. 553, 568-59, 783 A.2d 993 (2001).
The following facts are not in dispute. The Plaintiff was injured in an automobile accident on December 3, 2001. The Plaintiff, through her attorney, delivered the writ of summons and complaint under Docket No. CV-04-0831197 to the marshal for service on November 5, 2003, but did not serve the Defendant until January 14, 2004, after the statute of limitations had expired On June 1, 2004, the court (Stengel, J.) granted the Defendant's Motion to Dismiss, based on the plaintiff's failure to effectuate service of process within the two-year statute of limitations period.
On November 19, 2004, the Plaintiff filed this new action pursuant to the Accidental Failure of Suit statute, General Statutes § 52-592. This new case is essentially the same cause of action arising out of the December 3, 2001 accident which this court (Stengel, J.) previously dismissed. The Defendant moves for Summary Judgment, however, based on its claim that the Accidental Failure of Suit statute does not operate to save those actions which were not commenced prior to the expiration of the statute of limitations period. This Court agrees.
By its terms, General Statutes § 52-592(a) 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 the plaintiff . . . may commence a new action . . . for the same cause at any time within one year after the determination of the original action . . . (Emphasis supplied.)
At the crux of this issue is whether the original action was commenced within the statutory period. In finding that the original action was not commenced within the statutory period, this Court is bound by the holdings in Davis v. Family Dollar Store, 78 Conn.App. 235, 826 A.2d 262 (2003), appeal dismissed, 271 Conn. 655, 859 A.2d 25 (2004) and Rocco v. Garrison, 268 Conn. 541, 848 A.2d 352 (2004) which read together, define the parameters of when an action is commenced for purposes of § 52-592.
In Davis, the plaintiff gave the sheriff service of process papers three days prior to the expiration of the statutory period. Davis v. Family Dollar Store, supra, 78 Conn.App. 236. The sheriff then failed to make service and returned the writ of summons and complaint to the plaintiff over 6 months later. Id. Invoking General Statutes § 52-592, the plaintiff filed a new action. Id. The trial court granted the defendant's motion for summary judgment, finding that there was no determination of the original action because no prior action was ever commenced. Id., 236-37.
On appeal, the Davis plaintiff argued that the original action should be saved by § 52-592 because the writ and complaint was delivered in a timely manner, but due to accident, default or negligence of the sheriff, service was not made. Id., 238. In its decision, the Davis court acknowledged that there was a split of authority within the superior courts with respect to whether attempted service as opposed to actual service was sufficient for purposes of determining when an action is commenced. Id., 241-42. In affirming the trial court, the Davis court rejected the plaintiff's claim that the timely delivery of process to a sheriff constitutes commencement of an action, holding instead that an action is commenced when it is served upon the defendant. Id., 240-41. Significantly, our Supreme Court subsequently dismissed the appeal in 2004 on the grounds that certification was improvidently granted. Davis v. Family Dollar Store, 78 Conn.App. 235 (2003), appeal dismissed, 271 Conn. 655 (2004).
In its decision in the same year, our Supreme Court in Rocco v. Garrison further defined the parameters of how an action is commenced for purposes of § 52-592. Rocco v. Garrison supra, 268 Conn. 541. In that case, the defendant received the summons and complaint filed in federal court by certified mail four days prior to the expiration of the applicable statute of limitations period. Id., 545-46. He failed, however, to sign the formal waiver of service papers and thus formal service of process was not perfected until two months later. Id. After the summary judgment motion was granted in federal district court based on the expiration of the statute of limitations, the plaintiff filed another action in state court invoking § 52-592. Id. In the state court case, the defendant argued that § 52-592 could not save the second action because the original action never commenced due to lack of proper service. Id., 547. The trial court agreed and thereupon, granted the defendant's motion for summary judgment. Id.
In reversing the trial court, our Supreme Court held that § 52-592 does operate to save the plaintiff's action because the defendant received actual notice of the original action within the statute of limitations. Id., 553 Thus, for purposes of § 52-592, the action was timely commenced. Id. As noted by the Court, its provisions specifically operate to save any " action, commenced within the time limited by law, [which] has failed one or more times to be tried on its merits because of insufficient service." General Statutes § 52-592. If commencement of an action required proper service, reasoned the Rocco v. Garrison court, § 52-592(a) would be rendered meaningless. Rocco v. Garrison supra, 268 Conn. 550.
When read together, the Davis and Rocco decisions make it clear that improper or insufficient service is different from no service at all. See also Battaglia v. Colonial Condominium Ass'n., judicial district of Stamford-Norwalk at Stamford, Docket No. CV97 0157598, (March 24, 1998) ( 21 Conn. L. Rptr. 572). If the statutory time has lapsed after service was previously made, albeit improperly, an action has commenced for purposes of § 52-592. In contrast if service was not made by the statutory period, irrespective of whether service of process was timely delivered to a marshal and even attempted, the action has not commenced. See also Battaglia v. Colonial Condominium Ass'n., supra (§ 52-592 does not save actions where service attempted prior to statutory period but never made); Dolan v. Germond, judicial district at Fairfield at Bridgeport, Docket No. CV96 0330461 (April 9, 1997) (§ 52-592 inapplicable where service of process papers timely delivered to sheriff, but served on defendant 5 days after statutory period expired); Estate of Adamec v. H. East Elderly Apt., judicial district at Hartford-New Britain at Hartford, Docket No. CV 367902 (July 19, 1990) (§ 52-592 inapplicable where service of process papers timely delivered to process server, but served on defendant 17 days after statutory period expired). Compare Hird v. Iskra, judicial district of New Britain at New Britain, Docket No. CV030520308, (December 14, 2004) ( 38 Conn. L. Rptr. 410) (§ 52-592 operates to save action even though service delivered to defendant one day after statutory period expires due to the fifteen-day grace period of General Statutes 52-593a for service).
This Court has also renewed numerous other superior court decisions, including Finley v. Ginsberg, judicial district of Fairfield at Bridgeport, Docket No. CV04 4004657 (October 27, 2005) ( 40 Conn. L. Rptr. 184) relied upon by the plaintiff. The facts of Finley, however, differ significantly in several ways from the case at bar in that for example, the court (Skolnick, J.) found that service was impossible due to the death of the defendant. Moreover, in a footnote, the decision makes clear that service was timely made under the grace period allowed by General Statutes § 52-593a. Likewise, while the defendant in Hird v. Iskra was served one day after the statute of limitations expired, she was served within the fifteen-day grace period allowed under § 52-593a. As such, the court (Berger, J.) also found that the original action was timely commenced for purposes of § 52-592 because of the operation of § 52-593a.
Here, the parties do not dispute that service of the defendant in the original action occurred after the statute of limitations expired and after the thirty-day grace period allowed by General Statutes 52-593a. Since the savings provisions of § 52-592 may be invoked only when the original action is timely commenced, i.e., when service of the defendant occurs before the expiration of the statutory period, this second action filed by the Plaintiff must also fail.
Public Acts 2003, No. 03-224, § 14 amended § 52-593a to increase the time period for service of process from fifteen days to thirty days.
The Defendant's Motion for Summary Judgment is hereby GRANTED.