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Davis v. McDermott Chevrolet, Inc.

Connecticut Superior Court, Judicial District of New Haven at Meriden
Jan 14, 2005
2005 Ct. Sup. 1467 (Conn. Super. Ct. 2005)

Opinion

No. CV02 0281269-S

January 14, 2005


MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT


The plaintiffs, Weldon Davis and Peggy Davis, filed an action against the defendants David McDermott Hyundai, Inc. ("McDermott Hyundai") on March 12, 1996, entitled Davis v. David McDermott Hyundai, Inc., Superior Court, judicial district of New Haven, Docket No. CV 96 0384529 ( Davis I). In Davis I, the plaintiffs alleged that they delivered their Hyundai Sonata, purchased from McDermott Hyundai, to that dealership for repairs pursuant to the extended warranty they had purchased. In their complaint, the plaintiffs claimed breach of bailment, negligence and breach of warranty against McDermott Hyundai for failure to return the car. Davis I was dismissed on June 18, 1999, because of the plaintiffs' failure to prosecute the case. On June 9, 2000, the plaintiffs commenced a second suit against McDermott Hyundai, Inc. containing the same allegations. See Davis v. David McDermott Hyundai, Inc., Superior Court, judicial district of New Haven at Meriden, Docket No. CV 00 0272743 ( Davis II). Davis II was dismissed on June 18, 2001 for the plaintiffs' failure to serve the correct party.

Travelers Insurance Co. was also a named defendant.

See note 1.

The plaintiffs commenced the present action against McDermott Chevrolet, Inc. ("McDermott Chevrolet") on June 17, 2002 with service of process on David McDermott, president of the corporation ( Davis III). In their complaint, the plaintiffs raised the same claims as in the two earlier actions against McDermott Hyundai, breach of bailment, negligence and breach of warranty, and they invoked General Statutes § 52-592, the accidental failure of suit statute.

The Travelers Insurance Co. was not made a party to this action.

McDermott Chevrolet has moved for summary judgment on the grounds that this action is barred because it was not brought within the applicable statute of limitations period and cannot be saved by § 52-592. 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." Practice Book § 17-49.

There is no dispute that General Statutes §§ 42a-2-725 and 52-584, which govern sale of goods and negligence actions, respectively, contain the applicable limitations periods pertaining to this action. Section 52-584 provides in relevant part, "No action to recover damages for injury to . . . personal property, caused by negligence . . . shall be brought but within two years from the date when the injury is first sustained or discovered . . ." Because the plaintiff's breach of bailment claim also sounds in negligence, the same two-year time bar applies to that claim. Barnett Motor Transportation Co. v. Cummins Diesel Engines of Connecticut, Inc., 162 Conn. 59, 63, 291 A.2d 234 (1971) ("In the care of property, the bailee's contractual obligation is to exercise due care for the safekeeping of the bailed property, and . . . when loss or damage occurs, liability is based on negligence, even though negligence constitutes a breach of contract."). Section 42a-2-725 provides in relevant part, "(1) An action for breach of any contract for sale must be commenced within four years after the cause of action has accrued . . . (2) A cause of action accrues when the breach occurs . . ."

The plaintiffs and McDermott Chevrolet dispute whether claims for breach of bailment and breach of warranty were raised in the previous two lawsuits. As discussed herein, those claims are barred by applicable statutes of limitations, rendering this dispute moot.

Here, the plaintiff Weldon Davis attests in an affidavit submitted in support of his motion that he purchased the car and a two-year extended warranty from McDermott Hyundai on April 14, 1993 and that he later returned the vehicle to McDermott Chevrolet for repairs in March 1994. The present action was commenced against McDermott Chevrolet in June 2002, nine years after the plaintiffs brought the car in for repairs and six years after the plaintiffs initiated the first lawsuit, Davis I, on March 12, 1996. This is well beyond the applicable two- and four-year statutes of limitation.

Thus, unless the plaintiffs can utilize § 52-592, Connecticut's accidental failure of suit statute, their claim against the defendant is barred. Section 52-592(a) provides in relevant part, "[i]f 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 the action has been otherwise avoided or defeated by . . . 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.)

In Pintavalle v. Valkanos, 216 Conn. 412, 581 A.2d 1050 (1990), the Supreme Court examined the meaning of "original action" as used in § 52-592 (a). There, the plaintiff's first action was dismissed for improper service of process. The plaintiff commenced a second action after the expiration of the applicable statute of limitations period, relying on § 52-592(a) to save it. The second action was dismissed for failure to prosecute with due diligence. Subsequently, the plaintiff brought a third action, again invoking § 52-592(a), claiming that the statute was applicable because the third action was commenced within one year of the dismissal of the second action. The trial court granted the defendant's motion for summary judgment, stating that the third suit was barred by the applicable two-year statute of limitations and was not saved by § 52-592(a) because it had not been brought within one year of the dismissal of the first suit. On appeal, the Supreme Court affirmed the trial court decision, holding that "under . . . § 52-592(a) `original action' means the first action filed [by a plaintiff] within the time allowed by the applicable statute of limitations." Id., 419.

In Peabody N.E., Inc. v. Dept. of Transportation, 250 Conn. 105, 735 A.2d 782 (1999), the plaintiff brought two separate actions — one federal and one state — against the defendant within the applicable statute of limitations period, both of which were dismissed. On appeal, the Supreme Court examined whether the plaintiff could bring a third action, pursuant to § 52-592, the "saving statute." The third action was brought after the statute of limitations had expired, within one year of the determination of the last action timely filed, but not within one year of the determination of the first action timely filed. The court determined that the federal action, which was brought first, was the "original action" for purposes of § 52-592(a), Since the federal action was dismissed more than five years prior to the filing of the third action, the plaintiffs could not rely on § 52-592(a) to save their case. Thus, the court affirmed the trial court's holding that the third action was time barred.

Peabody differs procedurally in one respect from Pintavalle. In both cases, the first action was filed within the applicable statute of limitations. In Pintavalle, however, "the plaintiff brought the second action pursuant to § 52-592(a), and after the action's dismissal, brought a third action, relying again on the saving statute. By contrast . . . [in Peabody], the second action to be brought chronologically — that is, the first state action — was brought within the three-year limitations period and . . . [the plaintiff] relied only once on § 52-592." Peabody, supra, 250 Conn. 124-25. These differences do not, according to the court, have any bearing on its conclusion that "(i]n the context of § 52-592(a), `original action' is used to refer to the first action filed by the plaintiff within the applicable statute of limitations." (Emphasis in original.) Pintavalle, supra, 216 Conn. 417.

Section 52-592(a) provides in relevant part, "If any action, commenced within the time limimited by law, has failed one or more times to be tried on its merits . . . the plaintiff . . . may commence a new action . . . for the same cause at any time within one year after the determination of the original action or after the reversal of the judgment." (Emphasis added.)

The plaintiffs stated that they purchased their car from the defendant on April 14, 1993 and later returned it for repairs in March 1994. Davis I was brought within the applicable statute of limitations periods for negligence, breach of bailment and breach of warranty (two years, two years and four years, respectively) since the action was commenced on March 12, 1996. The second action, Davis II, was commenced on June 9, 2000, indisputably beyond the applicable statutes of limitation, but within one year of the June 18, 1999 determination in Davis I. This action, Davis III, was commenced on June 17, 2002, again beyd the applicable statutes of limitations, but within one year of the June 18, 2001 determination in Davis II. Davis III is similar in procedural history to Pintavalle. The third action in Pintavalle was brought after the expiration of the applicable statute of limitations and within one year of the dismissal of the second action, but not within one year of the first, or "original," action as required by § 52-592. As a result, the trial court (affirmed by the Supreme Court) held that the third action was time barred. Here, Davis III was brought beyond the applicable statutes of limitation and within one year of Davis II. However, Davis III was not brought within one year of Davis I, the original action. Under the reasoning articulated in Pintavalle, § 52-592 does not save this action.

The motion for summary judgment is granted.

BY THE COURT

Tanzer, Judge


Summaries of

Davis v. McDermott Chevrolet, Inc.

Connecticut Superior Court, Judicial District of New Haven at Meriden
Jan 14, 2005
2005 Ct. Sup. 1467 (Conn. Super. Ct. 2005)
Case details for

Davis v. McDermott Chevrolet, Inc.

Case Details

Full title:WELDON DAVIS ET AL. v. McDERMOTT CHEVROLET, INC

Court:Connecticut Superior Court, Judicial District of New Haven at Meriden

Date published: Jan 14, 2005

Citations

2005 Ct. Sup. 1467 (Conn. Super. Ct. 2005)