Opinion
CV116020801S.
11-14-2012
Richard RUSSELL v. MITCHELL PROPERTIES, INC. et al.
UNPUBLISHED OPINION
MILLER, J.
On April 18, 2011, the plaintiff filed a one-count complaint against Mitchell Properties, Inc. (MP). The plaintiff alleges that, on March 31, 2009, the plaintiff was in a parking lot owned by MP when he fell due to defective curbing, causing injury. The curbing was allegedly defective due to MP's negligence.
Plaintiff could not make service on MP, and MP never made an appearance. On May 16, 2011, the plaintiff filed a motion to cite in the defendant, Mitchell Property Group, Inc. (MPG), after having learned MPG, not MP, was the appropriate defendant.
The court granted the plaintiff's motion on June 2, 2011. MPG subsequently appeared through counsel.
On June 14, 2011, the plaintiff filed an amended complaint, adding a second count against MPG in addition to the first count against MP. This second count alleges the same facts as the first count, but alleges that MPG was the owner of the parking lot the plaintiff was injured in. On June 16, 2012, MPG filed a motion for summary judgment on the ground that it was served more than two years after the alleged incident occurred, and CGS § 52-584 therefore bars plaintiff's claim. On August 1, 2011, the plaintiff filed an opposition to the defendant's motion, arguing that General Statutes § 52-593 saves his claim from being untimely. On August 2, 2011, the plaintiff filed a motion to withdraw his action against MP.
Section 52-593 states in relevant 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 limitation 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." " Our Supreme Court has recognized that § 52-593 applies only in circumstances in which the plaintiff's original action failed by reason of naming, in fact, the wrong defendant; that is, in cases in which the naming of the wrong defendant was the product of a reasonable and honest mistake of fact as to the identity of the truly responsible individual ... To illustrate, § 52-593 would apply in a situation in which a plaintiff erroneously sues A under the mistaken belief that A negligently operated or owned a vehicle, when in fact B operated or owned the vehicle." (Citations omitted.) Isidro v. State, 62 Conn.App. 545, 549-50, 771 A.2d 257 (2001). In applying § 52-593, " [b]ecause the statute is remedial in nature, it should be construed broadly to accomplish its remedial purpose ... In addition, any ambiguities should be resolved in a manner that furthers, rather than thwarts, the [statute's] remedial purpose." (Citations omitted; internal quotation marks omitted.) DiPietro v. Farmington Sports Arena, LLC, 123 Conn.App. 583, 594, 2 A.3d 963 (2010), rev'd on other grounds, 306 Conn. 107, 49 A.3d 951 (2012). In discussing a similar saving statute, General Statutes § 52-592, the Appellate Court in Isidro noted that while the statute is remedial in nature and should be broadly construed, " it should not be construed so liberally as to render statutes of limitation virtually meaningless ... the same logic applies to § 52-593 ..." (Citation omitted; internal quotation marks omitted.) Isidro v. State, supra, 62 Conn.App. at 551.
As noted, for a plaintiff to take advantage of § 52-593, there must be a " termination of the original action." (Emphasis added.) General Statutes § 52-593. While the Appellate Court has noted, " to be eligible for relief under § 52-593, the plaintiff would have to have obtained a judgment in the original action." Cogan v. Chase Manhattan Auto Financial Corp., 83 Conn.App. 843, 846, 851 A.2d 407 (2004), aff'd on other grounds, 276 Conn. 1, 882 A.2d 597 (2005). The appellate courts of Connecticut have not defined " termination" as it is used in the statute.
The court in Cogan based its statement on its previous opinion in Billerback v. Cerminara, 72 Conn.App. 302, 805 A.2d 757 (2002). In that case, the court held that § 52-593 was inapplicable because the plaintiff's previous action was terminated due to dormancy, not due to naming the wrong defendant. The court stated: " The plaintiff was free to pursue the original action to obtain a judgment for failure to name the proper defendants and then, after the judgment was rendered, make the second claim. In the alternative, the plaintiff could have sought to open the judgment and then pursue the second claim. Whether the plaintiff made a tactical choice or not, she did not pursue either opportunity ." Id., at 308. While it acknowledged that this was a draconian result, the court said that it was " limited here by the language of General Statutes § 52-593 until the legislature chooses to remedy the situation." Id., at 309 n. 4. ---------
The Appellate Court has discussed whether voluntary withdrawal of a prior action qualifies as " failure to obtain judgment" for § 52-593. In Cogan, the Appellate Court stated, " [a] withdrawal arising out of a settlement simply is not equivalent to a judgment." Cogan v. Chase Manhattan Auto Financial Corp., supra, 83 Conn.App. at 847. In Iello v. Weiner, 129 Conn.App. 359, 20 A.3d 81 (2011), however, the court questioned this conclusion without addressing the issue directly. The court noted " that the important policy reasons underlying the utilization of § 52-593 may not be consistent with the current state of our law on this issue, particularly this court's decision in Cogan ..." (Citation omitted.) Id., at 364 n. 6. The court addressed this issue again in 2012, stating: " To the extent that this court has concluded that the voluntary withdrawal of an action technically does not qualify as a failure to obtain judgment for purposes of § 52-593 ... this conclusion may be an overly narrow one." (Citation omitted; internal quotation marks omitted.) Finkle v. Carroll, 134 Conn.App. 278, 284 n. 6, 37 A.3d 851, cert. granted, 305 Conn. 907, 44 A.3d 184 (2012). Therefore, while the court initially found that voluntary withdrawal does not qualify as " failure to obtain judgment" under § 52-593, its current position is less clear.
While the appellate courts have not specifically discussed whether a plaintiff may use § 52-593 to add an otherwise belated claim to an existing action, some trial courts have attempted to rule on what qualifies as termination as it pertains to the facts presented to them. The majority of courts have not allowed the use of § 52-593 when a plaintiff's previous action has not terminated prior to bringing a new action or claim under the saving statute, as was the case here.
In Medina v. Karcsinski, Superior Court, Judicial District of Fairfield at Bridgeport, Docket No. CV 99 0365802 (July 21, 2003, Wolven, J.), the plaintiff filed a negligence action against the defendants. After the statute of limitations had passed, the plaintiff cited in another defendant, claiming § 52-593 allowed this. The court granted the cited in defendant's motion for summary judgment, stating " this action is the original action and it had not been either determined or terminated. The protections available under ... § 52-593 only apply after the original action has failed." Id. The court also noted that " [a]lthough the Appellate and Supreme Court have not determined the issue of whether a plaintiff can utilize [§ 52-593] to add otherwise belated claims to an action, as the Appellate court has noted, according to [its] plain language, [it] clearly requires that the new action be commenced within one year after the determination or termination of the original action." (Internal quotation marks omitted.) Id., citing Martin v. Bristol Associates, 22 Conn.App. 625, 625-27, 577 A.2d 1138 (1990).
This court found Judge Sheldon's decision in Kerr v. Metropolitan District Commission, Superior Court, Judicial District of Hartford-New Britain at Hartford, Docket No. CV 92 0515671 (April 27, 1994), particularly persuasive. The plaintiff initially brought an action against two defendants and then cited in a third after the statute of limitations had passed. The court granted summary judgment for the cited in defendant stating, " the statute itself makes it quite clear that the exception it creates cannot apply to an original action which has not yet failed for any reason, but only to a new action which is commenced within one year of the termination of the original action ... Until the instant action is terminated and a new action is begun, the protection of [§ ]52-593 will be unavailable to save the plaintiff's right, if any, to sue [the defendant]." (Internal quotation marks omitted.) (Citation omitted; internal quotation marks omitted.) Id.
Several other courts have ruled against the plaintiff on this issue. See Karp v. American Legion Department of Connecticut, Superior Court, Judicial District of New Britain, Docket No. CV 93 0462879 (June 18, 1996, Handy, J.) (17 Conn. L. Rptr. 206, 209) (" [s]ince the original action has never been dismissed and the plaintiff has merely cited in the individual defendants, [§ 52-593] is not applicable"); Jandrok v. Naugatuck Savings Bank, Superior Court, Judicial District of Waterbury, Docket No. CV 97 0137321 (January 2, 2001, Doherty, J.), Hoskinson v. Regional School District # 1, Superior Court, Judicial District of Litchfield, Docket No. CV 00 0083953 (November 16, 2001, Agati, J.) (finding § 52-593 inapplicable " because the initial action has not been terminated"); and AIU Insurance Co. v. Servco Oil, Superior Court, Judicial District of Fairfield at Bridgeport, Docket No. CV 11 6014853 (July 21, 2011, Dooley, J.) (52 Conn. L. Rptr. 335) (granting summary judgment for a defendant sued in a new action by the plaintiff because the original action was not terminated).
A few trial courts have allowed a plaintiff to maintain an action under § 52-593 where their previous actions against incorrect defendants had not yet been terminated. In Carapezza v. Spinnaker Management, Superior Court, Judicial District of Litchfield, Docket No. CV 03 0089759 (March 24, 2004, Brunetti, J.), the plaintiff filed an action against a defendant the plaintiff later learned was the wrong party. The plaintiff cited in the correct defendant, but only after the statute of limitations had passed. The cited in defendant moved for summary judgment which the court denied. While the court mainly relied on the relation back doctrine in denying summary judgment, the court also found § 52-593 applicable, noting that " if the court granted [summary judgment], the statute would allow the plaintiff to immediately bring a new and separate action against [the correct defendant]. At the same time, the plaintiff's action against the [wrong defendant] would still be open and pending. As a result, there would then be two separate actions pending arising out of the same accident." Id. The court went on to note that if this was to happen, the court would then consolidate the cases and the parties would be in the same position as if the court had denied summary judgment. Therefore, in the interest of judicial economy, the court denied summary judgment.
In Lloyds v. Ryder Truck Rental, Superior Court, Judicial District of Hartford, Docket No. CV 00 0803023 (May 24, 2002, Wagner, J.) (32 Conn. L. Rptr. 261), the plaintiff's motion to substitute the defendant was granted and the plaintiff subsequently served the substituted defendant after the statute of limitations had passed. The defendant moved for summary judgment based on the statute of limitations. The court denied the defendant's motion, citing § 52-593. The court found the statute applicable because the plaintiff made an honest mistake of fact as to the identity of the original defendant and service was made on the substituted defendant within one year of the motion to substitute being granted.
This court agrees with the majority of trial court decisions on this issue, and finds that a plaintiff who wishes to bring an action pursuant to C.G.S. § 52-593 may not do so until after the suit against the misidentified defendant has been withdrawn or otherwise terminated. This relatively liberal interpretation of § 52-593 is still consistent with the plain language of the statute, which requires a " termination of the original action, " which this plaintiff clearly failed to obtain.
The motion for summary judgment is therefore granted. It is so ordered.