Opinion
KNLCV166027400S
11-20-2018
Allyn MILLER v. FANNIE MAE et al.
UNPUBLISHED OPINION
File Date: November 21, 2018
OPINION
Knox, J.
The plaintiff, Allyn Miller, brought this premise liability claim against the defendants, Fannie Mae, Aspen Realty, and William Raveis, for injuries that he allegedly sustained as a business invitee on April 20, 2015, at Fannie Mae property located at 78 Doubleday Road in Columbia, Connecticut. The plaintiff subsequently filed a complaint against the apportionment defendant, Safeguard Properties (Safeguard), on August 3, 2018. Safeguard filed a motion to dismiss the complaint on the grounds that the complaint was brought outside the statute of limitations and statute of repose, pursuant to General Statutes § 52-584, and the specific time limitation of General Statutes § 52-102b(d). The plaintiff filed an objection to the motion to dismiss claiming that the identity of the defendant was not known nor could have been reasonably known that the tolling of the two-year limitations period set forth in General Statutes § 52-584 and equitable tolling applies to the time limitations in § 52-102b(d).
BACKGROUND
On July 11, 2016, the plaintiff filed this action for injuries he allegedly sustained on April 20, 2015, when he fell as a result of a broken septic cover while he was an invitee on the subject premises. The plaintiff brought a premises liability claim against three defendants Fannie Mae, Aspen Realty, and William Raveis. More particularly, the plaintiff alleges that William Raveis, with the permission of Fannie Mae and/or Aspen Realty, provided the plaintiff access to the property by invitation for purposes of inspecting the property. On November 28, 2016, Fannie Mae brought an apportionment complaint against Safeguard, pursuant to § 52-102b. This apportionment complaint was returnable to court on December 13, 2016, and was served upon Safeguard on November 18, 2016. Thereafter, counsel for Safeguard filed an appearance on December 21, 2016.
On March 26, 2018, the plaintiff retained new counsel who filed an appearance in lieu of the plaintiff’s prior representation. On August 3, 2018, the plaintiff filed a complaint against Safeguard alleging that Safeguard had a contractual agreement to maintain and manage the subject property. On August 22, 2018, Safeguard filed a motion to dismiss the plaintiff’s complaint. The plaintiff filed its objection to the defendant’s motion to dismiss. The defendant filed a reply. The court heard argument on Safeguard’s motion and the plaintiff’s objection on October 29, 2018.
DISCUSSION
A motion to dismiss is used to assert lack of jurisdiction over the subject matter may be raised at any time. Waterbury v. Washington, 260 Conn. 506, 527, 800 A.2d 1102 (2002); see also Practice Book § 10-30. Subject matter jurisdiction is the power of the court to hear and determine cases of the general class to which the proceedings in question belong. Southern New England Telephone Co. v. Department of Public Utility Control, 261 Conn. 1, 21, 803 A.2d 879 (2002). Once the question of the Court’s subject matter jurisdiction is raised, it must be disposed of fully before the Court can proceed. Schaghticoke Tribal Nation v. Harrison, 264 Conn. 829. 838 n.6. 826 A.2d 1102 (2003).
Safeguard sets forth three bases in support of its motion to dismiss. First, the two-year statute of limitations for the plaintiff to bring a negligence action against it expired on April 20, 2017, pursuant to § 52-584. Second, the statute of repose on the plaintiff’s claims expired on April 20, 2018. Id. Third, the time limitation to plead over against an apportionment defendant expired on February 11, 2017, pursuant to § 52-102b. In his objection to the motion to dismiss, the plaintiff does not dispute that the claim was not brought within the two-year statute of limitations. Rather, the plaintiff claims that the two-year statute of limitations is tolled because the identity of the defendant was not known nor could have been reasonably known until December 2017. The plaintiff also claims that the doctrine of equitable tolling applies to the statutory time limitations set forth in § 52-102b.
Statute of Limitations and Repose
Section 52-584 provides in relevant part that: "No action to recover damages for injury to the person ... caused by negligence ... 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 ..." (Emphasis added).
The plaintiff claims that the two-year statute of limitations is subject to tolling based on the fact it did not discover Safeguard’s contractual relationship with Fannie Mae until December 6, 2017. Safeguard counters that there is no tolling of the two-year statute of limitations and that the plaintiff failed to bring the action within the statute of repose. Both parties rely on Tarnowsky v. Socci, 271 Conn. 284, 856 A.2d 408 (2004). In Tarnowsky, the court held that the identity of a tortfeasor is an essential jurisdictional element for an action for negligently inflicted injuries. Id., at 289. Our Supreme Court stated that "[it should be] emphasize[d] that a plaintiff’s ignorance of the identity of a tortfeasor will not excuse the plaintiff’s failure to bring a negligence action within three years of the date of the act or omission complained of" Id., 297. Tarnowsky does not hold that the two-year statute of limitation can be tolled indefinitely until the plaintiff discovers the identity of the tortfeasor and the specifics of the tortfeasors contractual relationship with named defendants. In this case, the plaintiff was on notice of the identity of the defendant on November 28, 2016, when Fannie Mae filed its apportionment complaint against the defendant alleging Safeguard’s negligence for the condition of the subject property. (#127.) Rather, under Tarnowsky, the statute of repose on plaintiff’s claims expired on April 20, 2018.
The court considered the plaintiff’s claim that he did not learn about any of Safeguard’s responsibilities regarding the subject premises until it received discovery from Fannie May dated May 8, 2017, that the details of the relationship between Fannie Mae and Safeguard were reasonably known only during the course of continuing discovery, and that contract between Fannie Mae and Safeguard was not disclosed until December 2017. These reasons, however, do not excuse the failure to bring the action within the three-year statute of repose.
Time Limitation: General Statutes § 52-102b
Section 52-102b(d) provides that: "Notwithstanding any applicable statute of limitation or repose, the plaintiff may, within sixty days of the return date of the apportionment complaint served pursuant to subsection (a) of this section, assert any claim against the apportionment defendant arising out of the transaction or occurrence that is the subject matter of the original complaint." Under the statute, the plaintiff had sixty days after the return date of the apportionment complaint to assert claims against the apportionment defendant. The plaintiff had until February 11, 2017 to plead over under the apportionment statute. The plaintiff did not serve any claims against Safeguard within the sixty days required by the statute. The apportionment complaint is untimely unless an equitable tolling doctrine applies.
In Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 20, 848 A.2d 418 (2004), the Court held that the 120-day limitation on service of an apportionment complaint under § 52-102b is mandatory because, inter alia, "when the legislature opts to use the words ‘shall’ and ‘may’ in the same statute, they ‘must then be assumed to have been used with discrimination and a full awareness of the difference in their ordinary meanings.’ Equitable tolling considerations, however, may excuse noncompliance with the time limitation. Id., 35-36.
More recently, in Pedro v. Miller, 281 Conn. 112, 118 914 A.2d 524 (2007), the Court noted that the mandatory 120-day time limitation "is not without exception." The Court held that the mandatory time limit "must be complied with absent an equitable reason for not excusing compliance, including waiver or consent by the parties." Id., 118. In Pedro, however, the issue did not concern waiver or consent, so the court examined the reason justifying excusal from compliance with the mandatory time limitation. The facts presented in Pedro are relevant to the Court’s analysis of the equitable tolling doctrine previously adopted in Lostritto. In Pedro, the plaintiff originally brought a negligence complaint against the driver of another vehicle that collided with her vehicle and the driver’s employer. Pedro v. Miller, supra, 281 Conn. 114. The plaintiff subsequently amended her complaint to add new facts arising during her course of treatment. In response to the amended complaint, the defendant filed an apportionment complaint against the plaintiff’s treating physician. Id., 115. While the apportionment complaint was beyond the 120 days mandated under the statute, the defendant claimed it had no factual or legal basis for any claim against the apportionment defendant until the plaintiff filed the amended complaint to add new facts arising from the course of treatment. Id., 115-16. The Court remanded the case with direction to deny the motion to dismiss the apportionment complaint. Id., 121.
The present case is distinguishable from Pedro. In Pedro, the apportionment plaintiff was entitled to equitable tolling because the new factual and legal claims did not even arise until after the statutory time period had lapsed. Here, the plaintiff knew the identity of Safeguard and Fannie Mae’s allegations against Safeguard by virtue of the apportionment complaint, which was filed on November 28, 2016. It is Fannie Mae’s apportionment complaint itself that provided the plaintiff with notice of facts and legal bases against Safeguard. As such, the sixty-day time period to plead over against Safeguard commenced on November 28, 2016. The plaintiff failed to assert a claim against Safeguard until August 2018, which was well beyond the time limitations of the statute. Nevertheless, the plaintiff claims that the November 28, 2016 apportionment complaint did not allege with specificity an alleged contractual agreement between Fannie Mae and Safeguard with regard to the subject property. While discovery may have provided additional information, the plaintiff knew of Safeguard when Fannie May filed its apportionment complaint against Safeguard. Therefore, unlike Pedro, the reason does not justify the belated filing of the complaint.
In conclusion, this case has been pending since 2016 with regard to an incident that occurred in April 2015. Safeguard has been an apportionment defendant since November 28, 2016. Under these circumstances the court cannot ignore the passing of the statutes of limitations or statute of repose, which serve important public policies. Flannery v. Singer Asset Finance Co., LLC, 312 Conn. 286, 322-23, 94 A.3d 553 (2014).
Wherefore, Safeguard’s motion to dismiss is granted.