Opinion
NNHCV156058804S
09-18-2018
Jessica NICHOLAS v. Pamela FRANCO
UNPUBLISHED OPINION
Murphy, J.
BACKGROUND
This matter comes before the court on the defendants’ motion for summary judgment (# 107) as to all counts of the complaint. The plaintiff commenced the instant action by way of complaint dated November 19, 2015. The motion before the court was filed by the defendant seeking summary judgment on the grounds that the plaintiff’s claims are barred by the statute of limitations, General Statues § 52-584, and, further, that the claims are not saved by the application of the accidental failure of suit statute pursuant to General Statutes § 52-592. A memorandum of law in support of motion for summary judgment (# 108) was filed on April 18, 2018. An opposition to motion for summary judgment with a memorandum of law (# 112) was filed on August 31, 2018. Oral argument was heard at short calendar on September 10, 2018.
It is undisputed that a prior similar action with Pamela Franco as a defendant was previously pending, by way of complaint dated June 18, 2014. The summons in the prior action listed Pamela Franco as a defendant with a City of New Haven, City Clerk, Michael Smart, 200 Orange Street, New Haven, Connecticut address for purposes of process. The officer’s return of process states that on June 19, 2014 and June 20, 2014, the complaint was served upon Michael B. Smart, City Clerk, and person authorized to accept service for Pamela Franco, City of New Haven and New Haven Board of Education and Dana Bilings, Clerk, New Haven Board of Education and person authorized to accept service for Garth Harries, Superintendent New Haven Board of Education. The marshal’s return does not indicate that Pamela Franco was served in hand or at her usual place of abode. Franco’s affidavit alleges she was not aware that a lawsuit was commenced against her until sometime in September of 2014. The prior case against Franco was dismissed by the court (Wilson, J.) on December 2, 2014 due to insufficient service of process. The instant action was served against the defendant within a year following the dismissal, on November 20, 2015.
DISCUSSION
"Summary judgment is a method of resolving litigation when 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." (Internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 534, 51 A.3d 367 (2012). "Summary judgment may be granted where the claim is barred by the statute of limitations." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 313, 77 A.3d 726 (2013). "The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a 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.) Stuart v. Freiberg, 316 Conn. 809, 821, 116 A.3d 1195 (2015).
The first issue in this action is whether the motion for summary judgment is timely. A scheduling order was filed and accepted by the court (Agati, J.) requiring that any dispositive motions, including motions for summary judgment, be filed by August 1, 2017. The Practice Rules provide that in such situation, "either party may move for summary judgment as to any claim or defense as a matter of right by the time specified in the scheduling order." Practice Book § 17-44. Procedurally, a request for permission to file should have accompanied defendant’s motion for summary judgment. However, in this particular case, a trial date has not yet been assigned and the pendency of the motion for summary judgment will not delay trial. The plaintiff had the opportunity to both argue and provide a memorandum of law on the substantive issues of the motion for summary judgment. Therefore, the court will not dismiss the motion on a procedural defect, and will consider the motion for summary judgment.
The next, and main, issue is whether the court should grant the defendant’s motion for summary judgment on the ground that the claims are barred by the statute of limitations as set forth in § 52-584. Section 52-584 provides in relevant part: "No action to recover damages for injury to the person ... caused by negligence or by reckless or wanton misconduct ... 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, except that no such action may be brought more than three years from the date of the act or omission complained of ..."
The defendant argues that any claim brought against her needed to be commenced on or before June 20, 2014. In support of her argument, the defendant cites Franco’s affidavit, which asserts that the last day of school for the 2011-2012 year was June 20, 2012 and that the claims alleged arose out of incidents occurring during that time and that, in accordance with the action, any action against the defendant needed to be commenced on or before June 20, 2014. The defendant argues that the claims were not commenced until almost a year and a half beyond the statute of limitations. The defendant further argues that the instant action is not saved by the accidental failure of suit statute: § 52-592.
In opposition, the plaintiff argues that the claims set forth in the instant action are saved by § 52-592 because the first action was dismissed due to insufficient service of process. In support thereof, the plaintiff asserts that, based upon the underlying facts of this action, it was reasonable to believe that the defendant was an employee of the City of New Haven and, therefore, it was diligent to attempt service of process through the City Clerk. The plaintiff further alleges that it was only upon the filing of the action and discovery that it learned that Franco was not in fact an employee of the City of New Haven, but, rather, an independent contractor. Service of process was deemed insufficient by the court (Wilson, J.) and the case against Franco was dismissed. It is undisputed that the instant action was filed within a year of the dismissal of the first action.
The defendant argues in response that the first action was never actually commenced against Franco because proper service was not timely made upon her, and, therefore, the accidental failure of suit statute does not apply to save the instant action.
Thus, the issue presented to this court is whether the instant action falls under the application of the accidental failure of suit statute. Section 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 because the action has been dismissed for want of jurisdiction ... the plaintiff ... may commence a new action ... for the same cause at any time within one year after the determination of the original action ..."
Our Supreme Court has determined that the savings statute does not require proper service of a summons and complaint for an action to be considered "commenced" under its provisions. Rocco v. Garrison, 268 Conn. 541, 549, 848 A.2d 352 (2004). To interpret § 52-592 to require valid service of process for an action to have been commenced would "render superfluous one of the principal purposes of the savings statute, namely, to save those actions that have failed due to insufficient service of process." Id., 550. In Rocco, the court found that the plaintiff commenced its action for purposes of the savings statute even though there existed invalid service of process. Id., 552-53. Nevertheless, the court found notice of the action to the defendant within the period prescribed by the statute of limitations was sufficient to invoke the application of the savings statute. Id. at 552.
The defendant argues that in this action, unlike the facts in Rocco, Franco had no notice of the action until September of 2014 and, therefore, lacked timely notice of June 2014 action to bring it within the application of the savings statute. However, Rocco did not hold as a prerequisite that a finding of timely actual notice be made in order to invoke the provisions of the savings statute. The court merely held that the term "commenced" under § 52-592 included improper service of process, which provided timely actual notice. Rocco v. Garrison, supra, 268 Conn. 550-51. Additionally, Rocco clearly rejected the argument presented by defendant here: that the savings statute requires valid service of process. The court, in rejecting such an argument, stated that "any failure of service of process would require us to conclude that no action had been commenced and that the statute does not apply," a position the court was unwilling to take. Id., 550. Our Supreme Court has been clear that "commencement" as under the savings statute does not require "good, complete and sufficient service of process ..." Id., 551.
Section 52-592 is a remedial statute, which must be "afforded a liberal construction in favor of those which the legislature intended to benefit ..." (Internal quotation marks omitted.) Dorry v. Garden, 313 Conn. 516, 530, 98 A.3d 55 (2014). Finding that the savings statute does not apply to cases that have been dismissed for insufficient service of process renders the provision within the statute- "has failed one or more times to be tried on its merits because of insufficient service ..."- meaningless. Id., 527. "[I]t is a basic tenet of statutory construction that the legislature [does] not intend to enact meaningless provisions ... [I]n construing statutes, we presume there is a purpose behind every sentence, clause, or phrase used in an act and that no part of a statue is superfluous." (Internal quotation marks omitted.) Id., 531. "[T]he language of § 52-592 distinguishes between commencement of an action and insufficient service of process by providing that an action may fail following its commencement because of insufficient service. To accept the view that improper or insufficient service defeats such an action would undermine the statute’s clear and unambiguous meaning and preclude the filing of a second action." (Emphasis omitted; internal quotation marks omitted.) Id., 528.
Both the Rocco and Dorry Courts found application of the statute where the prior action failed due to insufficient or improper service and, although both courts found timely notice to the defendant, neither court held that a finding of notice was necessary in order to invoke the application of the savings statute. In fact, both courts called for a broad reading of the savings statute.
In the instant case, service was attempted by service of process upon the City Clerk, where it was reasonably believed that the defendant was a City of New Haven employee. Upon determination that the defendant was, in fact, an independent contractor, the case was dismissed for insufficient service of process. If the court were to narrowly construe the savings statute in accordance with the argument of the defendant and require proper commencement or actual notice in order to be saved by the statute, the plaintiff would be prevented from having her day in court due to a procedural error. "Section 52-592 by its plain language, is designed to prevent a miscarriage of justice if the plaintiffs fail to get a proper day in court due to the various enumerated procedural problems ... It was adopted to avoid hardships arising from an unbending enforcement of limitation statutes ... Its purpose is to aid the diligent suitor." (Citation omitted; footnote omitted; internal quotation marks omitted.) Henriquez v. Allegre, 68 Conn.App. 238, 243-44, 789 A.2d 1142 (2002). "[O]ur Supreme Court has long held that § 52 592 is remedial and is to be liberally interpreted." (Internal quotation marks omitted.) Id., 244.
This court follows the call of our Supreme Court and Appellate Court to interpret the savings clause, a remedial statute, broadly as opposed to narrowly and adopts our Supreme Court’s "long-standing and principled view that the policy of our law is to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his day in court." (Internal quotation marks omitted.) Henriquez v. Allegre, 68 Conn.App. 247. In accordance therewith, and the authority cited herein, this court finds that the procedural error in service of process upon the defendant resulting in a dismissal of the prior action brings the instant action within § 52-592. Therefore, the defendant’s motion for summary judgment is denied.