Opinion
No. CV 09 5011589
June 18, 2009
MEMORANDUM OF DECISION
Facts and Procedural History
The plaintiff, Karen Barker, filed a complaint against the defendant, Kerry Rosati, on May 4, 2009. The complaint alleged that on August 27, 2006, the plaintiff's vehicle was rear-ended by the defendant's vehicle as a result of the defendant's negligence. The complaint further alleges that: "On or about August 25, 2008, Plaintiff's former counsel committed a writ, summons and complaint to the hands of a state marshal for service upon the Defendant. Per the marshal's return, said process was served on August 27, 2008 in accordance with Section 52-62 of the General Statutes. On February 20, 2009, said action, under Docket No. CV 08 5008708, was dismissed for lack of personal jurisdiction due to insufficient service of process by order of the court, Peck J. A certified copy of the summons and complaint was mistakenly mailed to Defendant's former Rhode Island address, rather than her current Rhode Island address. Accordingly, Plaintiff commences this new action under Section 52-592(a) of the General Statutes." The defendant filed a motion for summary judgment on May 15, 2009. The plaintiff filed a memorandum in opposition on May 26, 2009. The defendant filed her reply brief on May 29, 2009.
Section 52-62, in relevant part, provides: "(a) Any nonresident of this state who causes a motor vehicle to be used or operated upon any public highway or elsewhere in this state shall be deemed to have appointed the Commissioner of Motor Vehicles as his attorney and to have agreed that any process in any civil action brought against him on account of any claim for damages resulting from the alleged negligence of the nonresident or his agent or servant in the use or operation of any motor vehicle upon any public highway or elsewhere in this state may be served upon the commissioner and shall have the same validity as if served upon the nonresident personally . . . (c) Process in such a civil action against a nonresident shall be served by the officer to whom the process is directed upon the Commissioner of Motor Vehicles by leaving with or at the office of the commissioner, at least twelve days before the return day of the process, a true and attested copy thereof, and by sending to the defendant or his administrator, executor or other legal representative, by registered or certified mail, postage prepaid, a like true and attested copy, with an endorsement thereon of the service upon the commissioner, addressed to the defendant or representative at his last-known address. The officer serving the process upon the Commissioner of Motor Vehicles shall leave with the commissioner, at the time of service, a fee of twenty dollars, which fee shall be taxed in favor of the plaintiff in his costs if he prevails in the action. The Commissioner of Motor Vehicles shall keep a record of each such process and the day and hour of service . . ."
See Barker v. Rosati, Superior Court, judicial district of New London, Docket No, CV 08 5008708 (February 20, 2009, Peck, J.) (47 Conn. L. Rptr. 285).
Discussion
"Practice Book § 17-49 provides that 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. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007). "In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and, that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).
The defendant argues that she is entitled to summary judgment because the plaintiff's claim is time barred by the applicable statute of limitations. More specifically, the defendant argues that the plaintiffs most recent complaint was served on or about April 20, 2009, which is outside the two-year statute of limitations for negligence actions pursuant to § 52-584. Furthermore, the defendant argues that the Accidental Failure of Suit statute, § 52-592(a), is not applicable. The defendant contends that the plaintiff's original complaint was dismissed due to insufficient service of process, which the defendant argues was not caused by an "unavoidable accident or default or neglect of the officer" as the statute requires, but rather by the plaintiff's negligent failure to ascertain the current location of the defendant.
Section 52-584 states: "No action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct, or by malpractice of a physician, surgeon, dentist, podiatrist, chiropractor, hospital or sanatorium, shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of, except that a counterclaim may be interposed in any such action any time before the pleadings in such action are finally closed."
The plaintiff counters that there are genuine issues of material fact as to whether § 52-592(a) applies to her current complaint against the defendant. The plaintiff argues that "the Court [in dismissing her original complaint] made no factual findings that precluded the commencement of a new action under Section 52-592(a) of the General Statutes." She further argues that: "Since Defendant has failed to provide an evidentiary foundation for her assertions, Plaintiff has no obligation to rebut them by `opposing affidavits and other available documentary evidence.'" Additionally, the plaintiff argues that the defendant's contentions fail as a matter of law because courts have construed § 52-592(a) liberally, given that it is intended to be a remedial saving statute.
In her reply brief, the defendant points to the plaintiff's objection to the motion to dismiss her original complaint. The defendant argues that any statements made in this opposition brief should be treated as admissions for the purposes of this present motion for summary judgment. In her opposition to the motion to dismiss, the defendant asserts that the plaintiff adopted the statement of the marshal who served the original complaint at the defendant's former address. Furthermore, the defendant states: "The Plaintiff never argued that the Marshal made any error in mailing service of process to the Defendant at an expired address, nor does the Plaintiff make any representation that her attorney did not give the Marshal directions to deliver service at that address. Rather, the Plaintiff adopts the marshal's statement at fact and urges that the statement be used to show compliance with General Statutes § 52-62, as it relates to proper service of process." In essence, the defendant claims that the plaintiff's counsel gave the defendant's incorrect address to the marshal, who delivered the complaint to that address without error. The defendant claims that because "§ 52-592(a) provides for saving a Plaintiff's suit only when due to insufficient service due to the unavoidable accident or default and neglect of the officer" the defendant is entitled to summary judgment. The defendant also posits that the plaintiff's argument that § 52-592(a) be construed liberally has no bearing on this action.
Section 52-592(a) provides: "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, or the action has been otherwise avoided or defeated by the death of a party or for any matter of form; or if, in any such action after a verdict for the plaintiff, the judgment has been set aside, or if a judgment of nonsuit has been rendered or a judgment for the plaintiff reversed, the plaintiff, or, if the plaintiff is dead and the action by law survives, his executor or administrator, may commence a new action, except as provided in subsection (b) of this section, for the same cause at any time within one year after the determination of the original action or after the reversal of the judgment."
"Deemed a saving statute, § 52-592 enables plaintiffs to bring anew causes of action despite the expiration of the applicable statute of limitations . . . In order to fall within the purview of § 52-592, however, the original lawsuit must have failed for one of the reasons enumerated in the statute . . . Although § 52-592 should be broadly construed because of its remedial nature, it should not be construed so broadly as to hamper a trial court's ability to manage its docket by dismissing cases for appropriate transgressions . . . Nevertheless looming behind § 52-592 is the overarching policy of the law to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his day in court." (Citations omitted; internal quotation marks omitted.) Bosco v. Clark, Superior Court, judicial district of New Britain, Docket No. CV 08 5007334 (January 7, 2009, Tanzer, J.) (47 Conn. L. Rptr. 29).
In Rocco v. Garrison, 268 Conn. 541, 545-46, 848 A.2d 352 (2004), the plaintiffs, filing their original complaint in federal court, followed the procedure established by rule 4(d)(2) of the Federal Rules of Civil Procedure, which is intended to encourage parties to save the cost of formal service of a summons and complaint by providing that an individual who is subject to service and who receives notice of an action in the prescribed manner has a duty to avoid the unnecessary costs of service of the summons by complying with a request to waive formal service. The defendant, however, did not sign and return the waiver of service form as requested, and the statute of limitations lapsed before the plaintiffs' counsel could affect formal service of process. Id., 546. As a result, the District Court granted the defendant's motion for summary judgment. Id. The plaintiffs commenced a second action in Superior Court pursuant to § 52-592. Id. The defendant moved for summary judgment on the ground that the plaintiffs' federal action had not been commenced within the meaning of the savings statute due to a lack of proper service and that the statute, therefore, was inapplicable and could not save the plaintiffs' second action. Id., 547. Thus, the defendant argued that the plaintiffs' second action was barred by the statute of limitations. Id.
In reversing the trial court's granting of the defendant's motion for summary judgment the court stated: "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'; General Statutes § 52-592(a); cannot be construed to mean good, complete and sufficient service of process, as the defendant contends." Id., 550-51. Thus, the court concluded: "That the defendant failed to sign and return the waiver does not detract from the fact that the plaintiffs' original action was `commenced,' for purposes of the savings statute, when the defendant received actual notice of the action within the time period prescribed by the statute of limitations, Thus, in our view, although the original action was not commenced in a timely manner under the applicable statute of limitations due to insufficient service of process, it nevertheless was commenced for purposes of the savings statute." Id., 552-53.
The Rocco court also noted that: "The defendant merely argued that her motion for summary judgment should be granted because the plaintiffs had not commenced the original action within the applicable two year statute of limitations. In light of the fact that the defendant did not challenge the underlying reason for the insufficient service, the trial court did not address that issue in its memorandum of decision, but determined only that it was `impossible to conclude that the initial action was commenced . . . within the meaning of Connecticut statutes' because `[t]he plaintiffs never formally served the complaint on the defendant.' Moreover, that issue has not been briefed on appeal to this court. Consequently, in the absence of a claim by the defendant and a trial court ailing on whether the alleged cause of the insufficient service had been proven by the plaintiffs, and in the absence of such briefing, we decline to address that issue." Id., 553-54.
In Baldino v. Harris, Superior Court, judicial district of Fairfield, Docket No. CV 07 5012183 (September 12, 2008, Arnold, J.), the plaintiff brought a second action pursuant to § 52-592(a) after his original complaint was dismissed on both subject matter and personal jurisdiction grounds. The original complaint was dismissed because the defendant was not a resident of Connecticut at the time of the incident and was, in fact, a resident of New York at that time despite having a Connecticut motor vehicle operator's license. Id. Furthermore, the court concluded that there were insufficient contacts with Connecticut; the accident did not occur in Connecticut; and service was made upon the former address of the defendant in Connecticut at a time when the defendant's actual address was in New York, where the defendant was a resident. Id. The defendant argued that he was entitled to summary judgment because there was no genuine issue of material fact that the original action was never commenced within the two-year statute of limitations set forth in General Statutes § 52-584 because he was not properly served within two years of the accident. Id.
The court denied summary judgment stating that "[t]here is no doubt that the defendant received actual notice of the plaintiff's initial action prior to the expiration of the initial two-year statute of limitations." Id. The court found that the following occurred within two years of the accident, which indicated that the defendant had actual notice of the suit: the initial action was commenced by way of a complaint bearing a return date of less than one year following the accident; the defendant was deposed, by order of the court, regarding the subject motor vehicle accident; the defendant filed answers to the plaintiff's interrogatories; the defendant filed a motion to dismiss; and the court dismissed the original action following oral argument. Id. The court, relying on Rocco v. Garrison, supra, 268 Conn. 550-51, concluded that § 52-592(a) was applicable to save the action because although the court found that the plaintiff did not make proper service upon the defendant in the initial action, the defendant received clear and unmistakable notice of that action and that another action would be forthcoming pursuant to the accidental failure of suit statute. Id.
Finally in Bosco v. Clark, supra, 47 Conn. L. Rptr. 29, the plaintiff brought a second action pursuant to the accidental failure of suit statute after his initial complaint was dismissed on the ground that the court lacked jurisdiction over his person as a result of insufficiency of service of process. The plaintiff served the initial complaint at the address of the town clerk because the defendant was a town employee, who the plaintiff alleged negligently operated a police cruiser that struck the plaintiff's vehicle causing him to sustain injuries. Id. The defendant, however, had retired from the town police department months prior to this service. Id.
The defendant was served in accordance with § 52-57(b) (7), which provides in relevant part: "Process in civil actions against the following-described classes of defendants shall be served as follows . . . against an employee of a town . . . in a cause of action arising from the employee's duties or employment, upon the clerk of the town . . . provided two copies of such process shall be served upon the clerk and the clerk shall retain one copy and forward the second copy to the employee."
The court, also in reliance on the Supreme Court's decision in Rocco v. Garrison, supra, 268 Conn. 550-51, noted that "there is a question in the present case, sufficient to deny the motion for summary judgment as to him, as to whether [the defendant] received actual notice of the original action within the two-year limitation period for negligence claims under § 52-584, there is the further question as to whether Rocco requires that there be actual notice within the limitation period." Id. In Bosco, the accident at issue occurred on May 5, 2005. Id. The court file from the original action included the marshal's return of service dated April 27, 2007, and indicated that the defendant entered an appearance on May 11, 2007, fourteen days after the marshal left two copies of the writ, summons and complaint with the town clerk on April 27, 2007. Id. In denying the defendant's motion for summary judgment the court stated: "In considering the question of actual notice, the court notes General Statutes § 52-593a(a), which provides in relevant part: `[A] cause or right of action shall not be lost because of the passage of the time limited by law within which the action may be brought, if the process to be served is personally delivered to a state marshal authorized to serve the process and the process is served, as provided by law, within thirty days of the delivery.' This statute, thus `allows a right of action to continue after the statute of limitations has expired if the marshal (1) receives the writ of summons and complaint before the statute of limitations has expired and (2) service of process occurs within [thirty] days of the marshal receiving the papers.' Hibner v. Bruening, 78 Conn.App. 456, 462 n. 3, 828 A.2d 150 (2003). Although the court file from the original action does not indicate when the plaintiff delivered the process to the marshal, it indicates that the return of service is dated April 27, 2007, which is before the statute of limitations had expired and that [the defendant] filed both an appearance and a motion to strike within thirty days after the statute of limitations had expired. Given that § 52-592 should be broadly construed because of its remedial nature, and taking into account the time afforded a marshal to achieve service of process under § 52-593a(a), this court concludes that the original action against [the defendant] was `commenced' within the meaning of the savings statute." Id.
Here, the accident underlying the plaintiff's cause of action occurred on August 27, 2006. According to the plaintiff's complaint, on or about August 25, 2008, the plaintiff's former counsel delivered a writ, summons and complaint to a state marshal for service upon the defendant. Per the marshal's return, process was served on August 27, 2008 to the defendant's former address, which she had moved from in October 2006. Counsel for the defendant filed an appearance on October 23, 2008. See Barker v. Rosati, Superior Court, judicial district of New London, Docket No. CV 08 5008708 (February 20, 2009, Peck, J.) (47 Conn. L. Rptr. 285). The defendant's counsel thereafter filed a motion to dismiss on November 3, 2008. Id. The defendant claimed, in an affidavit attached to the motion to the dismiss, that she never received a copy of the original writ, summons and complaint in this case. Id. In the memorandum of law submitted in support of the defendant's motion to dismiss, the defendant's counsel represents that the only notice of the complaint came by way of a courtesy copy to the defendant's insurance carrier provided by the plaintiff's counsel, a fact which is not in dispute. Id.
In Rocco v. Garrison, supra, 268 Conn. 541; Baldino v. Harris, supra; and Bosco v. Clark, supra, 47 Conn. L. Rptr. 29, despite insufficient service of process by the plaintiffs, the court found that there were genuine issues of material fact as to whether the defendants had actual notice of the suit within the two-year statute of limitations. In Baldino v. Harris, service was made upon the former address of the defendant in Connecticut at a time when the defendant's actual address was in New York, where the defendant was a resident. In Bosco v. Clark, service was made upon the town clerk, months after the defendant ceased to be a town employee. The courts, however, found genuine issues of material fact as to actual notice because each of the defendants participated in the lawsuit in a variety of ways, within the two-year period, by: receiving notice of an action pursuant to rule 4(d)(2) of the Federal Rules of Civil Procedure; Rocco v. Garrison, supra, 546; participating in a court ordered deposition; Baldino v. Harris, supra; filing answers to interrogatories; Id.; filing a motion to dismiss; Id.; participating in oral argument on a motion to dismiss; Id.; and entering an appearance within the period proscribed by § 52-593a(a); Bosco v. Clark, supra.
Here, within the two-year statute of limitations, the original writ, summons and complaint were delivered to the marshal, who then served the defendant at her former address. Within the thirty-day period pursuant to § 52-593a(a), the defendant filed an appearance, even though the original writ, summons and complaint were served at an address that she had not lived at for more than two years. The defendant's filing of an appearance within this time frame raises a genuine issue of material fact as to the defendant's actual notice of the suit within the statute of limitations. Therefore, summary judgment is inappropriate at this time. Given that this court resolves this motion on the ground that there is a genuine issue of material fact as to the defendant's actual notice of the suit, it is unnecessary to delve into the defendant's argument that summary judgment is warranted because of the plaintiff's negligent failure to ascertain the current location of the defendant.
Conclusion
The defendant's motion for summary judgment is hereby denied.