Opinion
(14714)
The plaintiffs, who had brought an action against the defendant pursuant to the accidental failure of suit statute (§ 52-593), appealed to this court from the trial court's granting of the defendant's motion for summary judgment. The plaintiffs had originally sought damages from a different defendant, and summary judgment had been rendered in favor of that defendant more than one year earlier. Held that the trial court improperly determined that the one year period to file a new action pursuant to § 52-593 began when the trial court granted the original defendant's motion for summary judgment; because a party who is to exercise the right to bring an action under § 52-593 must be given the opportunity to know that the original action has been terminated, the time period does not begin to run until notice of the decision is issued by the clerk.
Submitted on briefs March 27, 1996
Officially released July 30, 1996
Action to recover damages for personal injuries sustained by the named plaintiff as a result of the alleged negligence of the defendant, brought to the Superior Court in the judicial district of Hartford-New Britain at Hartford, where the court, Sheldon, J., granted the motion to intervene as a plaintiff filed by Sargent Electric Company; thereafter, the court, M. Hennessey, J., granted the defendant's motion for summary judgment and rendered judgment thereon, from the which plaintiff appealed to this court. Reversed; further proceedings.
Richard B. Grabow, for the appellants (plaintiffs).
John B. Farley, the appellee (defendant).
The plaintiffs, Arthur Russell and Jeanne Russell, appeal from the order of the trial court granting summary judgment against them. They claim that the trial court improperly concluded that their complaint was not filed within the one year time period of General Statutes § 52-593. We reverse the judgment of the trial court.
The following facts and procedural history are undisputed. In 1989, the plaintiffs commenced an action against Natkin Company (Natkin) for personal injuries sustained by the named plaintiff in the course of his employment at the Mid-Connecticut Resources Recovery Project. On June 24, 1992, Natkin filed a motion for summary judgment asserting that it had no responsibility for the plaintiffs' injuries. On October 23, 1992, the trial court signed an order granting Natkin's motion for summary judgment, stating that the "[p]laintiff presented no competent evidence that the defendant had any duty to the plaintiff." On November 19, 1992, notice of the court's order granting summary judgment in favor of Natkin was sent to the parties.
The trial court's order was rendered in writing and not in open court.
There is nothing in the record to indicate what happened to the order between October 23 and November 19, 1992.
On November 13, 1993, the plaintiffs commenced the present action involving the same allegations of injury against the defendant pursuant to § 52-593, which provides in pertinent 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 termination of the original action. . . ." On November 16, 1993, service of process was made on the defendant.
On September 22, 1994, the defendant filed a motion for summary judgment against the plaintiffs. The defendant asserted that it was entitled to judgment as a matter of law "based on the plaintiff's service of his complaint on the defendant more than one year after the termination of a prior action as required by § 52-593." The defendant argued that the action against Natkin terminated on October 23, 1992, when the court signed the order granting summary judgment and that the plaintiffs' failure to effectuate service in the present action within one year of October 23, 1992, precluded the plaintiffs from bringing this action. The plaintiffs objected, arguing that pursuant to § 52-293, they had one year from the date that the clerk's office sent notice of the summary judgment in the original action to serve the defendant in this action. The plaintiffs assert, therefore, that they complied with § 52-593 by serving the defendant within one year of the termination of the original action.
The trial court found that "the date from which the one year period runs is the date the judge grants the motion. Therefore, pursuant to the clear and unambiguous language of the statute, the prior action was terminated on October 23, 1992. The last day for service of the new complaint on the defendant was October 23, 1993. The defendant was served on November 16, 1993, more than one year after termination of the prior action. Accordingly, the motion for summary judgment is granted."
We conclude that the one year period in which to file a new action under § 52-593 begins when notice is issued that the original action has been terminated. See Practice Book § 398. It is axiomatic that the right to bring a new action under § 52-593 assumes that the party who is to exercise the right be given the opportunity to know that the original action has been terminated. See Bridgeport Bowl-O-Rama, Inc. v. Zoning Board of Appeals, 195 Conn. 276, 281, 487 A.2d 559 (1985); Habura v. Kochanowicz, 40 Conn. App. 590, 592, 672 A.2d 512 (1996); Noethe v. Noethe, 18 Conn. App. 589, 595, 559 A.2d 1149 (1989). On November 19, 1992, notice was sent to the plaintiffs that their original action against Natkin was terminated. In the present action, the defendant was served on November 16, 1993, within one year from the date of notice that the original action was terminated.
A notation by a clerk of the court in the court file, however, raises a presumption that notice was sent and received, absent a finding to the contrary. Morelli v. Manpower, Inc., 34 Conn. App. 419, 423, 642 A.2d 9 (1994).