Opinion
No. CV 09-5031433-S
October 5, 2011
MEMORANDUM ORDER RE MOTION FOR SUMMARY JUDGMENT
Upon considering all oral and written arguments of counsel in support of and in opposition to plaintiff Terry Rutenberg's motion for summary judgment dated April 29, 2011, the Court hereby concludes, for the following reasons, that said motion must be GRANTED as to Counts Two, Three, Four, Six and Seven of the Counterclaim of defendants Michael and Jackie Ancona dated January 8, 2010, all of which are barred by the general statute of limitations for tort actions in General Statutes § 52-577, but must be DENIED WITHOUT PREJUDICE to refiling with respect to Counts One, Five and Eight of the Counterclaim:
1. The plaintiff brought this action against the defendants on July 3, 2009 to recover money damages under Connecticut's Dog Bite Statute, General Statutes § 22-357, based upon a July 5, 2006 incident in which she claims to have been attacked and injured by a pit bull dog owned and/or kept by the defendants.
2. On January 8, 2010, having previously filed a pro se answer to the plaintiff's complaint, the defendants, through present counsel, sought leave of this Court to file an Amended Answer and Counterclaim, which in the absence of objection became operative on that date.
3. In their Counterclaim, the defendants have brought eight claims against the plaintiff arising from and concerning the plaintiff's reporting of the dog bite incident here at issue and its allegedly harmful consequences.
4. Defendant Michael Ancona, who was arrested in connection with the dog bite incident on two charges — allowing a dog to roam, in violation of General Statutes § 22-364, of which he was later convicted, and nuisance, in violation of General Statutes § 22-363, of which he was later acquitted — brought the following claims against the plaintiff.
(a) In Count One, a claim of malicious prosecution, based upon the plaintiff's accusations against him concerning the dog bite incident in 2006, allegedly with malice and without probable cause, that led to his arrest for nuisance, in alleged violation of General Statutes § 22-363, of which he was acquitted in October 2008;
(b) In Count Two, a claim of false arrest, based upon his arrest in 2006 on the basis of the plaintiff's allegedly false and malicious accusations against him concerning the dog bite incident;
(c) In Count Three, a claim of defamation, based upon the plaintiff's alleged publication in 2006, to the general public including but not limited to police and prosecutorial officials, of false and defamatory statements about him concerning the dog bite incident.
(d) In Count Four, a claim of intentional infliction of emotional distress, based upon the plaintiff's allegedly false and malicious accusations against him in 2006 which led to his arrest in that year; and
(e) In Count Five, a claim of negligent infliction of emotional distress, based upon the plaintiff's allegedly false and malicious accusations against him in 2006 which led to his arrest in 2006 and prosecution until October 2008 on the charge of nuisance, of which he was acquitted.
5. Defendant Jackie Ancona, for her part, brought the following claims against the plaintiff:
(a) In Count Six, a claim of defamation, based upon the plaintiff's alleged publication in 2006, to the general public including but not limited to police and prosecutorial officials, of false and defamatory statements about her;
(b) In Count Seven, a claim of intentional infliction of emotional distress, based upon the plaintiff's alleged publication in 2006 of the false and defamatory statements about her with the intent to cause her emotional distress; and
(c) In Count Eight, a claim of negligent infliction of emotional distress, based upon the plaintiff's alleged publication in 2006 of the defamatory statements about her, by which conduct she is claimed to have negligently caused the defendant to suffer emotional distress.
6. After attempting unsuccessfully to request revision of the defendants' Counterclaim to obtain more specific descriptions of the conduct claimed to underlie the defendants' claims against her, the plaintiff answered the Counterclaim by denying each of the defendants' claims and interposing several special defenses. Among her special defenses are that the last seven counts of the Counterclaim are barred by the statutes of limitations governing the claims presented in those counts. In particular, the plaintiff alleges that the defendants' claims of false arrest, defamation, and intentional infliction of emotional distress, which were not brought against her until January 8, 2006, are all barred by the general three-year statute of limitations for tort actions set forth in General Statutes § 52-577 because they are based upon conduct which occurred no later than the end of 2006. Similarly, she alleges that the defendants' two claims of negligent infliction of emotional distress, both of which are governed by the two-year statute of limitations for negligence actions set forth in General Statutes § 52-584, were both commenced in untimely fashion because they too are based upon conduct that occurred solely in 2006.
7. The plaintiff has moved for summary judgment on the defendants' claims of false arrest, defamation and intentional infliction of emotional distress on the strength of her special defense to each under the three-year statute of limitations in General Statutes § 52-577. She argues, on this score, as she claimed in her applicable special defenses, that there is no genuine issue of material fact that she is entitled to judgment on each such claim in a matter of law since the language of the Counterclaim expressly alleges that the plaintiff's challenged conduct occurred in 2006, more than three years before the filing of the Counterclaim on January 8, 2010.
8. The defendants object to the granting of summary judgment under the statute of limitations, contending that each challenged claim was timely filed against the plaintiff under a statutory exception assertedly applicable to all counterclaims in the third clause of General Statutes § 52-584. Section 52-584 provides, in relevant part, as follows:
No action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct, or by malpractice . . . shall be brought but within two years from the date when the injury is first sustained or discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of, except that a counterclaim may be interposed in any such action any time before the pleadings are finally closed. (Emphasis added.)
The defendants claim that the underscored portion of the above-quoted statute saves the challenged Counts of their Counterclaim from the plaintiff's motion for summary judgment because they all were filed in this action before the pleadings herein were finally closed.
9. The plaintiff opposes the foregoing argument, contending that the plain language of § 52-584 limits its counterclaim exception to the statute of limitations to counterclaims filed in actions involving claims whose limitations periods are governed by § 52-584. For the following reasons, the Court agrees with the plaintiff's interpretation of the statute, which finds virtually unanimous support among those judges of the Court who, in the absence of controlling authority from our Supreme or Appellate Courts, have considered the issue. See J.E. Robert Co., v. Signature Properties, LLC, 2010 WL 1225329 (2010); Walden v. Gaewski, 2008 WL 1913919 (2008); Hall Brook Hospital v. Ferrigno, 2003 WL 22039853 (2003) [ 35 Conn. L. Rptr. 255] (declining to permit a late-filed counterclaim to a collection action under the counterclaim exception in § 52-584 because a collection action is not itself grounded by that statute).
10. Section 52-584 leaves no doubt at all that the counterclaim exception set forth in its third clause applies only to counterclaims filed in actions upon claims which are otherwise governed by that statute. After applying the two-year limitations period set forth its first clause to "action[s] to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct, or by malpractice," and noting in its second clause that " no such action may be brought more than three years from the date of the act or omission complained of" (emphasis added), the statute adds the counterclaim exception in its third clause in the following language: "except that a counterclaim may be interposed in any such action any time before the pleadings in such action are finally closed. (Emphasis added.) The interpretive issue presented for decision b this usage, of course, is what is meant in the statute by the term "such action"?
11. As used in the second clause of the statute, following the listing of the types of actions to which the two-year limitations period in the first clause expressly applies, the term "such action" obviously refers to the same list of actions which is set forth in the first clause. Hence, whereas the first clause of the statute is said to be the "statute of limitations" for actions sounding in negligence, reckless or wanton misconduct and malpractice, its second clause is said to be the "statute of repose" for those very actions, pursuant to which "such actions" are forever barred if they are not commenced within three years from the date of the act or omission complained of even if the two-year post-discovery "limitations period" prescribed for them in the first clause of the statute has not yet expired. Manifestly, the term "such action," as used in the second, or repose clause of § 52-584, means an action governed by the first, or limitations clause of the statute.
12. With the meaning of the term "such action" thereby established for the purposes of the statute, it is clear beyond question that that term must have the same meaning when it is used in the third, counterclaim exception clause of the statute. It necessarily means an action sounding in negligence, reckless or wanton misconduct or malpractice, of the sort which is governed by the first and second, limitations and repose clauses of the statute. Against this background, a counterclaim may be brought under § 52-584 at any time before the final closing of pleadings in any action governed by the limitations and repose clauses of § 52-584, that is, in any action sounding in negligence reckless in wanton misconduct or malpractice. By contrast, no action may not be brought under the counterclaim exception in that statute in any other kind of action, whether or not the action sounds in tort. Because an action brought under the Dog Bite Statute is not an action sounding in negligence, reckless or wanton misconduct or malpractice, it is not the kind of action in which a counterclaim otherwise barred by an applicable statute of limitations can be saved by filing it prior to the final closing of the pleadings therein.
Mulcahy v. Mossa, 89 Conn.App. 115, 126, cert. denied, 274 Conn. 917 (2005), a case relied upon heavily by the defendants in support of a broader interpretation of the counterclaim exception, is not to the contrary. There, the Appellate Court ruled that the late filing of a counterclaim against an intervening plaintiff whose only right of recovery in the case arose under the Workers' Compensation Act, General Statutes § 31-293. It did so, however, not because the counterclaim exception in the statute is applicable to actions of all sorts, but because, in the action before it, the intervening plaintiff's statutory claim was governed by the same statute which governed its co-plaintiff employee's underlying claim of negligence, to wit: Section 52-584. The rule of Mulcahy is thus consistent with this Court's analysis, in that it applies the counterclaim exception of the statute only to actions based upon claims whose limitations and repose periods are governed by that same statute.
14. Here, then, because the plaintiff's action against the defendants is brought under the Dog Bite Statute, the defendants' claims against her for false arrest, defamation and intentional infliction of emotional distress, all of which are otherwise barred by the general three year statute of limitations for tort actions set forth in § 52-577, cannot be saved under the counterclaim exception clause of § 52-584. The plaintiff is thus entitled to summary judgment on those claims, as pleaded in Count Two, Three, Four, Six and Seven of the Counterclaim.
15. As for the plaintiff's challenges to Counts One, Five and Eight of the Counterclaim, the Court is unable to resolve those challenges on the record now before it, for the allegations of the challenged Counts are far too indefinite to enable the Court to find that there is no genuine issue of material fact that the defendants cannot somehow prove their claims at trial. As for defendant Michael Ancona's claim of malicious prosecution, as set forth in Count One of the Counterclaim, the plaintiff insists that the defendant cannot prevail on that claim because all of the plaintiff's accusations against him were made without malice, as they merely involved reported events that occurred directly in front of her. If that is true, then she will probably prevail on that claim at trial. The problem on this motion, however, is that the Court has no record before it, such as answers by the defendants to requests for admission or responses by them to contention interrogatories, setting forth the particulars of the defendant's claim against the plaintiff. If the Court could know the entire factual basis for the defendant's claim, it could determine if the plaintiff's accusations could conceivably support a claim of malicious prosecution. Without knowing that entire basis, the Court cannot determine that there is no potential for liability based only upon the plaintiff's own description of the manner in which she reported the dog bite incident here at issue to police and prosecutorial officials.
16. Similarly, as to the defendants' claims of negligent infliction of emotional distress, the Court cannot rule on the potential sufficiency of such claims as a matter of law because it has no details at all as to the allegedly false and defamatory statements by which the plaintiff is claimed to have negligently inflicted emotional distress upon the defendants. Although the allegations of the challenged Counts are set forth in a woefully deficient manner, the plaintiff has not challenged them as pleaded, but only as they are supported by available factual proof. Here again, without knowing what exactly the plaintiff is claimed to have stated about either defendant, in what context such statements were communicated or to whom they were made, the Court cannot possibly determine if the utterance of such statements could qualify as negligent infliction of emotional distress as a matter of law. Without revision of the defendants' Counterclaim, which the plaintiff appropriately sought but was unable to obtain, the Court has no basis for determining exactly what the plaintiff is claimed to have done that might possibly be actionable on this theory of liability, and will have no such basis unless and until the plaintiff serves the defendants with additional discovery requests, such as requests for admission or contention interrogatories, to force them to clarify the true nature of their claims.
CONCLUSION
17. For all of the following reasons, the Court hereby GRANTS the plaintiff's motion for summary judgment with respect to Counts Two, Three, Four, Six and Seven of the defendants' Counterclaim, all of which are barred by the statute of limitations for tort actions set forth in General Statutes § 52-577, but DENIES the plaintiff's motion with respect to Counts One, Four and Eight of the Counterclaim without prejudice to her right to refile it after she has conducted additional discovery to clarify the defendants' claims.
IT IS SO ORDERED this 4th day of October 2011