Opinion
No. CV 08 5007945 S
January 7, 2009
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #101
On April 23, 2008, the plaintiff, Randy Chase, filed a single-count complaint against the defendant, the State of Connecticut, pursuant to General Statutes § 52-556, which provides a right of action against the state for persons whose injuries are sustained "through the negligence of any state official or employee when operating a motor vehicle owned and insured by the state . . ." The plaintiff alleges that on September 28, 2004, Melissa Slocumb, an employee of the defendant, was negligently operating a motor vehicle owned by the defendant when she collided with the rear of the plaintiff's vehicle causing him to sustain injuries. The plaintiff alleges that the present action has been brought pursuant to the accidental failure of suit statute, General Statutes § 52-592, in that it was commenced within one year after the plaintiff's action against Slocumb was dismissed because she was immune from liability under General Statutes § 4-165. See Chase v. Slocumb, Superior Court, judicial district of New Britain, Docket No. CV 06 5002667 (November 5, 2007, Shapiro, J.).
After the plaintiff's action against Slocumb was dismissed, but before the present action was commenced, the plaintiff, on December 18, 2007 commenced an action against the State of Connecticut. See Chase v. State, Superior Court, judicial district of New Britain, Docket No. CV 08 5006527. The complaint is nearly identical to that of the present action, except that the plaintiff alleged that he was bringing his case pursuant to General Statutes § 52-593, rather than § 52-592. General Statutes § 52-593 authorizes an action against the correct defendant within one year after the judgment in an action brought against the wrong defendant. After the State of Connecticut filed a motion for summary judgment on the ground that § 52-593 did not apply because the action against Slocumb did not fail by reason of the plaintiff's failure to name the right person as a defendant, the plaintiff withdrew the action on May 29, 2008. The present action is, therefore, the plaintiff's third action arising out of these facts, and the second action against the State of Connecticut.
Specifically, § 52-593 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 the termination of the original action . . ."
Although the plaintiff's reasons for withdrawing the action, the first against this defendant, are unknown, the State of Connecticut's motion for summary judgment would likely have been granted. See Isidro v. State, 62 Conn.App. 545 (2001). In Isidro, a case with facts analogous to this one, the plaintiff initiated an action against the State of Connecticut after summary judgment had been granted in favor of the state employee who had operated the motor vehicle. The Appellate Court concluded that § 52-593 did not apply to the plaintiff's case, reasoning that "the plaintiff's original action was not dismissed because she failed to name the proper defendant as a matter of fact. Instead, the plaintiff's original action was dismissed because the defendant was immune from liability. [T]he plaintiff did not make a mistake as to the identity of the owner of the vehicle at the time of the original action. To the contrary, she stipulated that the state owned the vehicle. The plaintiff was, therefore, free to pursue the state in the original action but did not to do so for some reason, whether a tactical choice or technical deficiency." Id., 550.
The State of Connecticut has moved for summary judgment on the ground that there is no genuine issue of material fact that this action is barred by § 52-584, the two-year statute of limitations for negligence claims and that this action is not saved by § 52-592, the accidental failure of suit statute. General Statutes § 52-592(a) provides in relevant part: "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 . . . for any matter of form . . . the plaintiff . . . may commence a new action . . . for the same cause at any time within one year after the determination of the original action . . ." (Emphasis supplied.) "Deemed a `saving statute,' § 52-592 enables plaintiffs to bring a new 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." (Citation omitted; internal quotation marks omitted.) (Emphasis supplied.) Skinner v. Doelger, 99 Conn.App. 540, 553, cert. denied, 282 Conn. 902, (2007).
In support of its motion, the defendant contends that the original action against the State of Connecticut was not instituted within the time limited by law and therefore this action cannot be saved from the bar of the statute of limitations. In opposition, the plaintiff maintains that the original action is Chase v. Slocumb, that the original action was brought within the time limited by law, and that the present action "relates back" to the original action and is thus saved. The defendant argues that, if the plaintiff's "original action" was his action against Slocumb, then § 52-592 is inapplicable because the original action did not fail due to service issues, unavoidable accidents, jurisdictional defects or other matters of form.
"The court notes that the action against Slocumb was dismissed because of immunity pursuant to § 4-165 Claims involving the doctrines of common-law sovereign immunity and statutory immunity, pursuant to § 4-165, implicate the court's subject matter jurisdiction." (Internal quotation marks omitted.) Mercer v. Strange, 96 Conn.App. 123, 128 (2006).
Thus, as a preliminary matter, the court must determine which action of the two prior actions brought by the plaintiff is the "original action" for purposes of § 52-592. Our Supreme Court has construed the term "original action" with respect to its meaning in § 52-592 as "the first action filed within the time allowed by the applicable statute of limitations." (Internal quotation marks omitted.) Peabody N.E., Inc. v. Dept. of Transportation, 250 Conn. 105, 120, (1999). The plaintiff argues that the action against Slocumb is the first or original action because a change in defendants from Slocumb to the State of Connecticut is nominal and the legal interests represented by the state in this action are identical with those of Slocumb in the original action. The plaintiff relies on Isaac v. Mount Sinai Hospital, 210 Conn. 721 (1989). In Isaac, the Supreme Court considered the question of whether the accidental failure of suit statute authorizes the plaintiff to bring a new action for wrongful death where the original action was dismissed, because at the time it was commenced the named plaintiff was in fact not the administratrix of the decedent's estate. In response to the defendants' argument that § 52-592 vas inapplicable because the plaintiff in the first suit was not the same plaintiff as in the subsequent suit, the court reasoned: "It is difficult to conceive of a closer identity of interest than that found in this case . . . In light of the remedial purpose of § 52-592, we conclude that total identity of plaintiffs is not a prerequisite to application of the statute. We look, instead, to the essence of the plaintiff's status and the interest she represented. Deborah Isaac was the purported administratrix of Redgnard Isaac's estate in the first instance and the actual administratrix in the second case. The cause of action and the claimed factual background, as well as all defendants, were identical in both instances. Accordingly, application of § 52-592 to his case is not precluded." Id., 732-33. Isaac is factually distinguishable from the present matter in significant ways. In Isaac, he identity of the plaintiff, not the defendant, was at issue; and in Isaac, all defendants were identical in both cases. In Slocumb, the plaintiff never contended "that he attempted to add the state as a defendant, that the state was served with process, or that the state was formally notified, appeared, and participated in the proceedings." See Chase v. Slocumb, Superior Court, judicial district of New Britain, Docket No. CV 06 5002667 (November 5, 2007, Shapiro, J.). Under these circumstances, "allowing the plaintiff to gain refuge under § 52-59[2] would undermine the purpose of the statute of limitations." Isidro v. State, supra, 62 Conn.App. 551. "The purpose of the statute of limitations is well settled in our law. There are two principal reasons generally given for the enactment of a statute of repose: (1) it reflects a policy of law, as declared by the legislature, that after a given length of time a [defendant] should be sheltered from liability and furthers the public policy of allowing people, after the lapse of a reasonable time, to plan their affairs with a degree of certainty, free from the disruptive burden of protracted and unknown potential liability . . . and (2) to avoid the difficulty in proof and record keeping which suits involving older [claims] impose . . . [T]he policy of statutes of limitation includes promoting repose by giving security and stability to human affairs . . ." (Citations omitted; internal quotation marks omitted.) Beebe v. East Haddam, 48 Conn.App. 60, 67 (1998).
The plaintiff also relies on the law governing releases and employer-employee relations in the area of respondeat superior and vicarious liability, but the cases cited by the plaintiff do not concern § 52-592 and arc not applicable here.
More on point is Vessichio v. Hollenbeck, 18 Conn.App. 515 (1989), in which the Appellate Court considered the applicability of § 52-592 to situations where a lawsuit is commenced against a new defendant after the statute of limitations has run. There, the plaintiffs first brought an action against the town of Cheshire in September 1982, to collect money damages for injuries allegedly sustained on September 8, 1980, on the premises of a school owned and operated by the town. The two-count complaint alleged negligence and nuisance. A judgment of dismissal was ultimately rendered in the case for failure to prosecute with due diligence. Thereafter, on June 13, 1985, the plaintiffs filed a second lawsuit, which was brought against the school custodian and the town, to collect money damages for the injuries allegedly sustained on September 8, 1980. Count one of the three-count complaint alleged that the school custodian was negligent. On October 21, 1987, the trial court granted the school custodian's motion for summary judgment on count one. In response to the plaintiffs' claim, on appeal, that the trial court erred in concluding that § 52-592 was inapplicable to save the plaintiffs' action, the Appellate Court stated: "Neither the plaintiffs nor the defendants contend that the suit against the [school custodian] was not time barred by § 52-584. Rather, the plaintiffs claim that the action against [the school custodian] is saved by the provisions of General Statutes § 52-592 . . . Section 52-584 makes it evident that the action against the [school custodian] was not brought `within the time limited by law.' Because the plaintiffs must satisfy all of the criteria in § 52-592 in order to prevail . . . the trial court did not err in concluding, as a matter of law, that the plaintiffs' action against the [school custodian] was not saved by § 52-592." (Citation omitted.) Id., 519.
With respect to the present case, the plaintiff failed to commence a negligence action against the defendant within two years from the date when the injury was first sustained, as required by § 52-584. "In Connecticut, an action is commenced when the writ, summons and complaint have been served upon the defendant." Rocco v. Garrison, 268 Conn. 541, 553 (2004). The present action was commenced by service of process upon the defendant on April 9, 2008, over three and a half years after the motor vehicle accident. It is time barred. The plaintiff's first or original action against the State of Connecticut was commenced by service of process on December 18, 2007, over three years after the accident on September 28, 2004. Because the plaintiff's original action against the State of Connecticut was not commenced within the time limited by law, § 52-592 cannot save this action from the time bar. The defendant's motion for summary judgment is granted.
It is not necessary to reach the defendant's contention that because the original action against the state of Connecticut was withdrawn, § 52-592 is inapplicable. See Parrott v. Meacham, 161 Conn. 573 (1971). ("The original action having been voluntarily withdrawn by the plaintiff, that `withdrawal . . . cannot by the most liberal construction constitute accidental failure of suit for matter of form,' and the circumstances do not bring this case within the saving terms of § 52-592.")