Opinion
No. CV08-5008698S
January 16, 2009
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (#116)
At short calendar on December 8, 2008, the court heard the defendant's motion for summary judgment on the ground that the plaintiff's action is time-barred by the two-year statute of limitations on negligence claims pursuant to General Statutes § 52-584, and the exception under General Statutes § 52-593a does not apply. The plaintiff argued that the exception applies. Both parties submitted memoranda supporting their respective positions.
FACTS
From a review of all the pleadings and the undisputed portions of affidavits submitted by the parties, the following facts are pled. On March 20, 2006, the plaintiff, Bonnie Cronin, was in a three-car collision when Paul Brenner collided with the rear-end of a vehicle owned and operated by David Minnefield, who then collided into the rear-end of the plaintiff's vehicle. The plaintiff alleges that at the time of the accident, Brenner was operating a motor vehicle owned and insured by the Tribune Television Company (Tribune) in his capacity as an agent of Tribune.
On March 18, 2008, the plaintiff delivered her original writ, summons and three-count complaint alleging negligence against Minnefield and Brenner, and vicarious liability against Tribune, to State Marshal Thomas Gahan. Gahan subsequently served process on Tribune and Brenner on April 7, 2008, and April 10, 2008, respectively. Significantly, Gahan's return, which is in the court file, did not indicate the date of the plaintiff's delivery of the said process to him. The plaintiff filed her complaint and return of service with this court on April 22, 2008.
On November 20, 2008, Brenner and Tribune (the defendants) filed a motion for summary judgment and an accompanying memorandum in support thereof, contending that there are no issues of material fact and that they are entitled to judgment as a matter of law because the action is barred by the two-year statute of limitations set forth in General Statutes § 52-584. The plaintiff filed a memorandum in opposition to the motion on November 24, 2008. The defendants filed their response on December 2, 2008.
DISCUSSION
Practice Book § 17-49 provides that summary judgment shall be granted "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." "The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material fact which, under applicable principles of substantive law, entitle him to judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Internal quotation marks omitted.) Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 252, 819 A.2d 773 (2003). "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." Id. "Summary judgment may be granted where the claim is barred by the statute of limitations." Doty v. Mucci, 238 Conn. 800, 806, 679 A.2d 945 (1996). Summary judgment is appropriate on statute of limitation grounds when the "material facts concerning the statute of limitations [are] not in dispute . . ." Burns v. Hartford Hospital, 192 Conn. 451, 452, 472 A.2d 1257 (1984).
In the present case, the plaintiff argues that she satisfied the statute of limitations since she provided the writ, summons and complaint to the marshal two days prior to the expiration of the two-year statute of limitations, and the latter served the defendants within the thirty days allowable under General Statutes § 52-593a. The defendants counter, arguing that the marshal did not comply with the requirement of § 52-593a(b) that he include on his return an endorsement of the date that the plaintiff delivered process to him, and that this failure to comply with the statute is fatal to the plaintiff's claims. The court, in reviewing carefully the criteria of the statutes, agrees with the defendants.
Section 52-584 provides in relevant part: "[n]o action to recover damages for injury to the person . . . shall be brought but within two years from the date when the injury is first sustained." It is undisputed that the accident at issue occurred on March 20, 2006. Therefore, since the plaintiff attempted to commence this action by serving the defendants with process after the statute of limitations had run, the action will be found to be untimely unless the plaintiff can demonstrate that a statutory exception applies.
Section 52-593a(a) provides that "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." Indeed, under § 52-593a, a marshal who receives process within the statute of limitations has thirty days from the date of delivery to serve process on the defendant. Stingone v. Elephant's Trunk Flea Market, 53 Conn.App. 725, 732 A.2d 200 (1999). The applicability of this legislative provision, however, is contingent upon the marshal including on his return an endorsement of the date on which the process was delivered to him. See General Statutes § 52-593a(b).
Reading the subsections of 52-593a together, the plain language meaning of subsection (b) renders subsection (a) ineffective without compliance with the endorsement requirement. In Buck v. Esman, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 365584 (November 19. 1993, O'Neill, J.) (10 Conn. L. Rptr. 413), the court also held that subsections (a) and (b) must be read together. The court's reasoning was three-fold: "first, because they are parts of the same section, second because in subsection (b) the expression `any such case' refers to subsection (a) and third, because the requirement of an endorsement under oath shows the seriousness of the requirement in order to support any subsection (a) action." Id.
In the present case, the court finds that Gahan did not comply with subsection (b) because his return fails to state when he received the writ, summons and complaint from the plaintiff. Therefore, because the statute of limitations for the plaintiff's claims had lapsed at the time the defendants were served, and "[t]he provisions of Connecticut General Statutes 52-593a can be of no assistance to the plaintiff"; Cazimovski v. Retro Clubs, Inc., Superior Court, judicial district of Waterbury, Docket No. 130900 (May 28, 1996, Pellegrino, J.); the defendants' motion for summary judgment is granted.