Opinion
No. CV07-5013800
September 25, 2009
MEMORANDUM OF DECISION
The defendant has moved for summary judgment claiming that the applicable statute of limitations has expired and the accidental failure of suit statute, General Statutes § 52-592, does not save the plaintiffs' action. The issue presented by the defendant's motion is whether the plaintiffs' diligent, good faith attempt at abode service of process on the defendant constitutes the commencement of an action under the accidental failure of suit statute. I conclude that it does.
The underlying facts are not in dispute. In the subject action, the plaintiffs Diego Jimenez and Luz Jimenez allege that, on February 5, 2001, they were injured in a motor vehicle accident due to the negligence of the defendant David DeRosa. The plaintiffs had previously filed a similar action on March 7, 2003. That action was dismissed by the court on August 23, 2006. Jimenez v. DeRosa, Superior Court, judicial district of New Haven at New Haven, Docket No. CV03-0474948S (August 23, 2006, Skolnick, J.), and affirmed on appeal, Jimenez v. DeRosa, 109 Conn.App. 332 (2008). Judge Skolnick dismissed the action for lack of personal jurisdiction over the defendant. The state marshal had served the writ, summons and complaint at 33 Oxbow Lane, Northford, Connecticut, believing that residence to be the usual place of abode of the defendant. The address of 33 Oxbow Lane had been obtained from the driver's license information provided by the defendant at the scene of the accident. It was also listed as the defendant's address in records obtained from the Connecticut department of motor vehicles, the North Branford town clerk's office and the registrar of voters. Judge Skolnick found that the defendant did not reside at 33 Oxbow Lane at the time the marshal left the process at that address. The defendant had moved from the residence approximately sixteen months previously as a result of a restraining order obtained by his wife. At the hearing before Judge Sknolnick, the parties disputed whether the defendant received actual notice of the underlying action. Judge Skolnick made no factual finding regarding actual notice.
The facts cited in this opinion are contained in Judge Skolnick's written decision of which I take judicial notice.
The plaintiffs personally served the defendant with the instant action on August 15, 2007, within one year of the dismissal of their prior action by the trial court. The defendant has moved for summary judgment asserting that the plaintiffs' suit is barred by the two-year statute of limitations established by General Statutes § 52-584 and that it is not saved by General Statutes § 52-592, the accidental failure of suit statute, because the first action was not "commenced" within the time limited by law as that term is defined by the statute. Specifically, the defendants argue that the failed attempt at abode service did not commence the action under Connecticut law because the summons and complaint were never actually served on the defendant. The plaintiffs assert that this action falls under the protection afforded by the accidental failure of suit statute. They contend that the attempt at abode service made under the circumstances of this case qualifies as a commencement of an action for purposes of General Statutes § 52-592. I agree with the plaintiffs.
General Statutes § 52-592(a) provides in relevant part that: "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 . . . the plaintiff . . . may commence a new action . . . for the same cause at any time within one year after the determination of the original action or after the reversal of the judgment." This statute "is remedial and is to be liberally interpreted." Ross Realty Corporation v. Surkis, 163 Conn. 388, 393 (1972). Its purpose is "to insure to the diligent suitor the right to a hearing in court till he reaches a judgment on the merits." Isaac v. Mount Sinai Hospital, 210 Conn. 721, 733 (1989), quoting Gaines v. New York, 215 N.Y. 533 (1915) (Cardozo, J.)
Our Supreme Court has recently determined that the savings statute does not require proper service of a summons and complaint for an action to be considered "commenced" under its provisions. Rocco v. Garrison, 268 Conn. 541 (2004). To interpret § 52-592 to require valid service of process for an action to have been commenced 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." Id., 550. Although insufficient service of process may serve to commence an action for purposes of the accidental failure of suit statute, the question remains as to what types of invalid service of process qualify under the statute.
In Rocco v. Garrison, supra, the court held that invalid service of process which provided actual notice of the action to the defendant within the time period prescribed by the statute of limitations meant that the action was commenced for purposes of the savings statute. Id., 552. The defendant argues that the court in Rocco required a finding of actual notice for invalid service of process to qualify as having commenced an action, a finding which he claims was not made in this case. The court's decision contains no such limiting language. The court merely held that the term "commenced" under § 52-592 included improper service of process which provided timely actual notice. The court did not hold that the term was limited to that type of invalid service.
Not all insufficient service of process will constitute commencement of an action under the savings statute. Davis v. Family Dollar Store, 78 Conn.App. 235 (2003), appeal dismissed, 271 Conn. 655 (2004). In Davis, the plaintiff delivered the process to a sheriff to be served on the defendant but no service was ever made by the sheriff. The court in Davis held that the mere delivery of process to a sheriff fails to qualify as the commencement of an action under the savings statute. Davis v. Family Dollar Store, supra, 78 Conn.App. 240-41.
The defendant asserts that Davis v. Family Dollar Store, supra, and Drwiega v. Aferzon, Superior Court, judicial district of New Britain at New Britain, Docket No. CV05-4002977 (October 31, 2007, Shapiro, J.) support his contention that an unsuccessful attempt to serve a defendant with process does not constitute commencement of an action for purposes of § 52-592. I am not persuaded.
Davis v. Family Dollar Store, supra, 78 Conn.App. 235, did not hold that all unsuccessful attempts at service of process fall short of commencing an action under the savings statute. That precise argument was rejected by the Supreme Court in Rocco v. Garrison, supra, 268 Conn. 55 ("General Statutes § 52-592(a) cannot be construed to mean good, complete and sufficient service of process, as the defendant contends.") In Davis, there was no evidence of any attempt to serve the defendant with the summons and complaint. The process was merely given to a sheriff for service with no apparent effort by the sheriff to serve that process. The decision in Davis v. Family Dollar Store stands for the limited proposition that a complete lack of any effort to attempt to serve a defendant with process will not save a subsequent lawsuit under the savings statute.
The defendant also cites language from Drwiega v. Aferzon, supra, which appears to draw a distinction between improper service of process where the process, albeit defective, is actually served on the defendant and improper service of process where service is attempted but the process is never received by the defendant. The former qualifies as commencement of the action under the savings statute; the latter does not. Drwiega v. Aferzon, supra, ("When read together, the Davis and Rocco decisions make it clear that improper or insufficient service is different from no service at all. 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." (Citations omitted.)) See also Illescas v. Needham, Superior Court, judicial district of Hartford at Hartford, Docket No. CV04-4005457 (August 10, 2006, Elgo, J.) That dichotomy is not supported by appellate case law. As noted previously, Rocco does not hold that only invalid service of process which actually reaches the defendant qualifies as commencement of the action under the savings statute and Davis does not hold that all unsuccessful attempts to actually serve process on a defendant fail to constitute the commencement for purposes of the savings statute. While an unsuccessful attempt to serve process on a defendant where the defendant receives timely actual notice of the lawsuit constitutes commencement of the action under § 52-592, Rocco v. Garrison, supra, and mere delivery of process to a marshal with no attempt at service does not, Davis v. Family Dollar Store, supra, these situations do not define the universe of commencing an action for purposes of the savings statute.
In Drwiega v. Aferzon, supra, the court held that invalid service of process on the office manager in an action where personal service or abode service was required because the defendant was an individual doctor did not qualify as commencement of the action under General Statutes § 52-592.
In this case, the undisputed evidence establishes that the plaintiffs made a diligent, good faith effort to serve process on the defendant by leaving a copy of the summons and complaint at the address provided by the defendant at the scene of the accident and listed as the defendant's address in various government records. The savings statute is remedial and its terms, including the term "commences," should be construed broadly. Ruddock v. Burrowes, 243 Conn. 569, 575 (1998). In keeping with its statutory purpose which is to insure that "the diligent suitor" gets his day in court, Isaac v. Mount Sinai Hospital, supra, 210 Conn. 733, a diligent, good faith effort to serve process on a defendant such as that put forth by the plaintiff here is sufficient to save, under the auspices of § 52-592, the action from dismissal.
For the aforementioned reasons, the defendant's motion for summary judgment is denied.