Opinion
No. CV 03 0830308 S
June 30, 2004
RULING ON MOTION FOR SUMMARY JUDGMENT
The defendant has moved for summary judgment based on his defense alleging that the action is barred by the applicable statute of limitations, § 52-584 of the General Statutes. It is not disputed that the automobile accident from which this case arises occurred on November 6, 2001. Service was made on the defendant executor on November 26, 2003. Unless some exception serves to toll the running of the statute in some way, the action is barred.
The plaintiff claims in her brief, and stressed in oral argument, that the "accidental failure of suit" statute, § 52-592a of the General Statutes, saves the action. The problem with her position is that in order for § 52-592a to be applicable, the original action must have been "commenced within the tine limited by law." The facts are undisputed that, in this case, an original action brought against the deceased, who passed away on August 3, 2003, was delivered to a marshal on November 4, 2003, and returned to the plaintiff's attorney on November 7, 2003, with the information that the party had passed away. The "accidental failure of suit" statute is thus inapplicable, because the first suit, which serves as the triggering event, was never commenced. "Commencement" requires service. See, e.g., Mavis v. Family Dollar Store, 78 Conn. App. 235, 240-41 (2003).
The possibility that delivery to the marshal within the statute of limitations and proper service within fifteen days after delivery might "save" the action was mentioned at oral argument. It is true, of course, that § 52-593a(a) allows effective service in such circumstances; in such case the marshal, pursuant to § 52-593a(b), is to endorse on the return of service the date on which the process was delivered to him/her. In this case there is no such endorsement. In any event, a further savings provision would be required to validate the timing in this instance because delivery of the process of the complaint which was served was reportedly made on November 12, 2003, still beyond the applicable period.
If we construe the statute and the facts appearing in support of and in opposition to the motion most favorably toward the plaintiff with an eye toward saving the action, we may take into account a tolling of the statute for the period of time between the death of the original defendant, Stolman, and the appointment of the representative of the estate. Affidavits suggest that Stolman died on August 3, 2003, and the defendant Scott was appointed on August 18, 2003. If fifteen days are then added to the termination date of the period of time in which process can be served; see Franklin v. Ackerman, 29 Conn. Sup. 246 (1971); the last day would be November 21, 2003. Service was not accomplished until November 26, 2003. If there were evidence submitted to show that there was delivery to the marshal on November 12, 2003, as represented by the plaintiff, then there may be a persuasive argument that the action was saved. There is, however, no evidence to that effect in the form of affidavit or other similar source; and I cannot treat a reference in a memorandum of counsel or oral argument as evidence. "[T]he party opposing such a motion (for summary judgment) must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." Billerback v. Cerminara, 72 Conn. App. 302, 305-06 (2002).
The plaintiff and the defendant representative are not, according to representations made at oral argument, related.
The motion for summary judgment is granted.
Beach, J.