Opinion
No. HHD CV-09-6005918-S
July 14, 2011
MEMORANDUM OF DECISION ON MOTION TO DISMISS
Upon reviewing all materials submitted by the parties concerning third-party defendant Town of Simsbury's Motion to Dismiss, the Court hereby concludes, for the following reasons, that said Motion must be GRANTED:
1. On November 20, 2009, the minor plaintiff, Emma Barringer, filed an action against the defendants, Whole Foods Market Group, Inc. ("Whole Foods") and Community Farms of Simsbury ("Community Farms"), pleading claims under the Connecticut Product Liability Act, General Statutes § 52-572m. Specifically, the plaintiff claimed that she became ill as a result of consuming contaminated milk allegedly sold by Whole Foods and produced by Community Farms of Simsbury. The plaintiff's Writ of Summons and Complaint were returned to this Court on December 3, 2009.
2. On November 24, 2010, Whole Foods moved to implead the Town of Simsbury ("the Town") as a third-party defendant in this action, in order to assert claims against it for indemnification and contribution. Specifically, Whole Foods claimed that the Town must indemnify it in connection with the plaintiff's claims and/or contribute to the payment of those claims because: (1) the Town is the owner and lessor of the property on which the Town Farm Dairy is located; (2) the Town had a duty to maintain the property in a reasonably safe condition and knew or should have known of the unreasonable risk of harm or dangerous activity to be conducted on the property; and (3) the Town negligently maintained, controlled or oversaw the operations of the Town Farm Dairy.
3. The Court granted the motion to implead on December 10, 2010. Thereafter, Whole Foods served its Third-party Complaint upon the Town on December 16, 2010, and the Town appeared in the action through counsel on January 11, 2011.
4. On February 10, 2011, the Town filed the instant Motion to Dismiss the Third-party Complaint on the ground that the Court lacks subject matter jurisdiction because Whole Foods failed to serve its Third-party Complaint within the time period mandated by Connecticut General Statutes § 52-577a(b), to wit: "within one year of the date the cause of action under subsection (a) of this section is returned to court."
5. On March 8, 2011, Whole Foods objected to the Town's Motion to Dismiss on three principal grounds: first, that the statute of limitations is procedural and may not be raised on a Motion to Dismiss; second, that the Court is not bound by the limitations period set forth in the statute because Whole Foods' claims are equitable in nature and the time for bringing equitable claims is limited only by the doctrine of laches; and third, that the statute of limitations started to run on the return date, December 29, 2009, not on December 3, 2009, when the complaint was actually returned to court. Accordingly, it argues that its service of the Third-party Complaint on December 16, 2009 was in fact timely under General Statutes § 52-577a(b).
6. Connecticut Practice Book § 10-31 provides that a Motion to Dismiss is generally only appropriate for jurisdictional matters. There is a conflict in the Superior Court as to whether or not the time limitation set forth in Section 52-577a(b) should be regarded as jurisdictional, and thus raisable on a motion to dismiss. Compare Demelis v. Lyon Billard Co., No. CV 940367841S, 2000 WL 41714 (Conn.Super. Jan. 3, 2000, Alander, J.) [ 26 Conn. L. Rptr. 209] (the time limitation established by § 52-577a(b) is procedural in nature and may not be invoked through a motion to dismiss); with Gulycz v. Giant Bicycle Corp., No. CV 980485167S, 1999 WL 203819 (Conn.Super. Mar. 31, 1999, Graham, J.) (the statute of limitations issue is considered substantive or jurisdictional and a motion to dismiss is the proper vehicle to raise the issue of whether a § 52-577a product liability claim was commenced within the applicable statutory period). Notwithstanding the analyses set forth in those earlier decisions, our Supreme Court has since provided a definitive answer to this question in the related context of apportionment complaints and the pleading over by plaintiffs of direct claims of negligence against apportionment defendants. The pleading of such claims in negligence actions, like the pleading of indemnification and contribution claims in product liability actions, must be brought by a fixed statutory deadline if they are to be litigated together with the plaintiff's initial claims against the original defendants. In Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10 (2004), the Court held that a plaintiff's failure to serve an amended complaint pleading over against an apportionment defendant by the statutory deadline for that purpose constitutes a jurisdictional defect properly raised by a motion to dismiss. However, the Court further held that any such defect is a defect in personal, not subject-matter, jurisdiction. The Court discussed the difference between these two aspects of jurisdiction as follows: "We have previously stated that jurisdiction of the subject-matter is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong . . . A court has subject-matter jurisdiction if it has the authority to adjudicate a particular type of legal controversy." (Internal quotation marks omitted.) Rayhall v. Akim Co., 263 Conn. 328, 339 (2003). A defect in process, however, such as an improperly executed writ implicates personal jurisdiction rather than subject-matter jurisdiction. See Brunswick v. Inland Wetlands Commission, 222 Conn. 541, 551 (1992).'" 269 Conn. at 37-38. Concluding that the plaintiff's failure to serve an amended complaint pleading over against an apportionment defendant within the time prescribed by law was a defect in process, the Court found that that failure could be raised by a timely motion to dismiss for insufficiency of process.
7. By analogy to an amended complaint in which a plaintiff pleads over against an apportionment defendant, which cannot be pursued in the context of the underlying negligence action unless it is timely commenced within the time allowed for that purpose by law, a third-party complaint for indemnification and/or contribution cannot be pursued in the context of an underlying product liability action unless it is commenced within the time frame prescribed for that purpose by law. Here, where the third-party defendant's motion to dismiss for failure to comply with the time requirements of § 52-577a(b) was timely filed exactly thirty days after its counsel appeared in this action, its challenge to the Court's personal jurisdiction of the third-party plaintiff's claims against it may properly be adjudicated.
8. The principal issue presented by this Motion to Dismiss concerns the proper interpretation of General Statutes § 52-577a(b), and in particular whether that statute bars the instant action. General Statutes § 52-577a(b) reads as follows:
In any [product liability] action, a product seller may implead any third-party who is or may be liable for all or part of the claimant's claim, if such third-party defendant is served with the third-party complaint within one year from the date the cause of action brought under subsection (a) of this section is returned to court. (Emphasis added.)
There is conflict in the Superior Court on this issue. Some cases have held that the limitations period set forth in § 52-577a(b) begins to run on the date that process in the action is actually returned to court. In CT Page 17554 Vaughn v. The Warehouse Store Fixture Co., Inc. et al, No. CV065003608, 2008 WL 2039443 at *1 (Conn.Super. Apr. 23, 2008, Rittenband, J.T.R.) [ 45 Conn. L. Rptr. 415], for example, the Court held that the pleading requirement set forth in Section 52-577a(b) was violated when the original complaint had a return date of June 6, 2006, but was actually returned to court on April 28, 2006, and the defendant was not served with the third-party complaint until May 21, 2007, more than one year after the actual return date. Similarly, in Patel v. Hartford Hospital, the Court held that because the plaintiff's underlying action was returned to court on April 14, 1999, the third-party plaintiff was required by Section 52-577a(b) to serve the third-party complaint upon the third-party defendant by April 14, 2000. The Patel Court further noted that the operative date by which to measure the one-year limitation period was not the return date on the complaint, but the date stamped by the clerk's office when the complaint was actually returned to court. Patel v. Hartford Hospital, No. CV990424954, 2003 WL 21716591, at *2-3 (Conn.Super. July 8, 2003, Skolnick, J.) [ 35 Conn. L. Rptr. 30]. In Warren v. Silent Stalker, the Court held that because the third-party plaintiff did not serve the third-party defendant within one year of December 16, 1994, the date the original action was returned to court, the third-party plaintiff did not satisfy the statutory requirement set forth in Section 52-577a(b). Warren v. Silent Stalker, No. CV 940048866S, 1996 WL 434442, at *1 (Conn.Super. July 15, 1996, Ripley, J.) [ 17 Conn. L. Rptr. 356].
9. Although courts in the other cases have interpreted General Statutes § 52-577a(b) to mean that the limitations period therein established begins to run on the return date, not that the date the cause of action is actually returned to court, the third-party complaint in each such action was served more than one year after both the return date and the date on which process was actually returned to court. Therefore, such courts' treatment of this issue is merely dictum since the limitations period in each of them question was exceeded, regardless of how the court interpreted the statute. See, e.g., Demelis v. Lyon Billard Co., No. CV 940367841S, 2000 WL 41714 (Conn.Super. Jan. 3, 2000, Alander, J.) ( the return date for the plaintiff's complaint was December 13, 1994 and the third-party complaint was served on July 23, 1999, more than 4 years after the original action was filed); Safeco Ins. Co. v. Ford Products Corp., No. 28 60 12, 1992 WL 65415 (Conn.Super. Mar. 18, 1992, Hadden, J.) [ 6 Conn. L. Rptr. 165] (the return date on the complaint was July 25, 1989 and the summons accompanying the third-party complaint was dated June 13, 1991, almost two years after the original action); Almonte v. Simon Ford, Inc., No 51 01 95, 1991 WL 273707 (Conn.Super. Dec. 12, 1991, Hurley, J.) (the original complaint was brought on April 7, 1989 with a return date of May 2, 1989 and the third-party complaint was served on August 30, 1991, more than two years after the original action).
10. Against this background, this Court finds that the words "returned to court" in General Statutes § 52-577a(b) are clear and unambiguous. The plain language of the statute does not say "returnable to court." The original complaint in this action was "returned to" this Court on December 3, 2009. Pursuant to § 52-577a(b), the one-year limitations period began to run on that date. Applying the statutory requirements to the facts of this case, if Whole Foods wanted to avail itself of the right to implead a third-party, Section 52-577a(b) required that a third-party complaint be served on the third-party defendant by December 3, 2010. Whole Foods' third-party complaint was not timely, and is therefore barred by § 52-577a(b), because it was served upon the Town on December 16, 2010, thirteen days after the one-year limitations period expired on December 3, 2010.
11. In light of the Court's interpretation of General Statutes § 52-577a(b), Whole Foods' right to implead and assert its indemnification and contribution claims against the Town as part of the present action is time-barred. However, Whole Foods' claim of indemnification against the Town still may be pursued in a separate suit at a later date. See Connecticut General Statutes § 52-598a.
12. Whole Foods further alleges that it had no notice of the date the original Complaint and summons were returned to court, and it is therefore unfair to interpret § 52-577a(b) so as to require a product seller to serve a third-party complaint within one year of the date the cause of action is returned to court. However, this reading of the statute does not produce an inequitable result, either generally or in this case, because the actual date on which the process is returned to court is always available for the parties to view on the online docket on the judicial website.
13. For the reasons discussed, the instant Motion to Dismiss must be GRANTED. IT IS SO ORDERED this 14th day of July 2011.