Opinion
No. CV06-5002917
July 11, 2006
MEMORANDUM OF DECISION
Before this court is the Defendant's Motion to Dismiss and Memorandum of Law filed on April 18, 2006. The Plaintiff filed its Opposition to the Defendant's Motion to Dismiss on June 5, 2006 and on July 3, 2006, this Court heard oral argument. Having reviewed the briefs filed by the parties and considered the arguments of counsel, this Court denies the Defendant's Motion to Dismiss.
The sole issue before this Court is whether Connecticut's Accidental Failure of Suit statute, General Statutes § 52-592, is applicable when the defendant is the State of Connecticut. The parties do not dispute that the Claims Commissioner under General Statutes § 4-160(b) granted the Plaintiff permission to sue on December 2, 2004. The parties also agree that pursuant to General Statutes § 4-160(d), any action permitted under these provisions must be brought within one year of the Commissioner's authorization to sue and that such action must be filed in state court. Instead, the Plaintiff, on September 9, 2005, filed its complaint in federal court. On February 28, 2006, the court, Covello, J. dismissed the complaint for lack of subject matter jurisdiction.
The Plaintiff, invoking Connecticut's Accidental Failure of Suit statute under General Statutes § 52-592, filed a new action in state court on March 27, 2006, well within the one year requirement under that provision, but beyond the time requirement dictated by the relevant provision of the Claims Commission statute. By its terms, General Statutes § 52-592(a) and (d) provides, in relevant part:
(a) If any action, commenced with the time limited by law, has failed one or more times to be tried on its merits 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 . . .
(d) The provision of this section shall apply to . . . Any action brought to the United States circuit or district court for the district of Connecticut which has been dismissed . . . because of lack of jurisdiction in such court.
Notwithstanding these provisions, the Defendant asserts that the Plaintiff is precluded from relying on § 52-592 to reinstitute his cause of action against the state. Relying primarily on Carbone v. Zoning Board of Appeals of Hartford, 126 Conn. 602 (1940), the Defendant urges this Court to find that an action authorized by the Claims Commissioner is a "peculiar and purely statutory proceeding" like administrative appeals in Carbone. Therefore, the Plaintiff's failure to file suit in state court within one year, as required by the provisions of § 4-160(d), is fatal, and like the administrative appeal which was untimely filed in Carbone, is not amenable to the saving provisions of the Accidental Failure of Suit statute.
This Court however, finds the analogy unpersuasive, especially in light of the more recent and more compelling Supreme Court case of Lacasse v. Burns, 214 Conn. 464 (1990), which the Defendant fails to address in its brief. In Lacasse, the plaintiff's original action against the state was brought pursuant to the Defective Highway statute which expressly waives the state's sovereign immunity under General Statutes § 13a-144. This action, however, was dismissed for failure to prosecute under then Practice Book provision § 251. In subsequent actions filed by the plaintiff, the trial court held that the saving provisions of § 52-592 were inapplicable to the state because within it, there was no express or implied waiver of immunity. As such, the trial court concluded that the plaintiff's remedy was strictly limited to § 13a-144, for which the two-year statute of limitation had already run. The Supreme Court disagreed and reversed, holding that once the state has specifically waived its sovereign immunity, it is subject to the same procedural statutes and rules of court that apply to any litigant before the Court. Id. While the Court acknowledged the well established principle that "statutes in derogation of sovereign immunity should be strictly construed," it soundly rejected a strict construction of § 52-592, given the procedural and remedial nature of its provisions.
In contrast, the Carbone court simply held that administrative appeals, as "peculiar and wholly [sic] statutory" proceedings, were not "actions" as contemplated by § 52-592, and as such, had no opportunity to consider the implications of cases arising out of a waiver of sovereign immunity. Carbone v. Zoning Board of Appeals of Hartford, supra, 126 Conn. 602. Like the Carbone court, the defendant also raises the specter of the § 52-592 and its potential to nullify statutes of limitation, citing Rosario v. Husak, 50 Conn.App. 632 (1998). In fact, however, our Supreme Court has not allowed litigants to extend time limitations to sue beyond the one year time frame, as triggered by the dismissal of the original action as dictated by § 52-592. See Peabody NE v. Department of Transportation, 250 Conn. 105 (1999) (dismissal of the federal case and not the dismissal of the subsequent case filed in state court triggered the one year filing requirement under § 52-592). Notably, even in the Peabody case, where the state was sued first in federal court, and then twice in state court, the issue before the court was not whether § 52-592 was applicable in actions against the state, but rather at what point must its provisions be invoked to reinstate the plaintiff's ability to sue the state.
While the Claims Commission provisions of § 4-160 address how litigants may seek permission to sue the state and the terms by which an action is filed if permission is granted, its core purpose is to give litigants a remedy for damages against the state where appropriate. Notably, permission to sue in the case at bar was sought and given under the medical malpractice provision of § 4-160(b), which the Claims Commissioner "shall authorize" upon the filing of a certificate of good faith. In this way, the apparent intent and purpose of § 4-160 is similar to that of § 13a-144, where the legislature also expressly gives litigants injured on state highways, sidewalks and bridges a remedy in damages, which would not otherwise be available given the sovereign immunity enjoyed by the state.
Moreover, § 4-160(c) states that under each action authorized by the Claims Commissioner, "the rights and liability of the state in each such action shall be coextensive with and shall equal the rights and liability of private persons in like circumstances." Although the defective highway statute which the Lacasse court considered does not contain such definitive language, the Lacasse court made clear its interpretation of legislative intent noting "once validly summoned into court, the state is to be treated procedurally just like any other litigant." Lacasse v. Burns, supra, 214 Conn. 471.
Given the clear parallels between § 4-160 and 13a-144, the holding in Lacasse v. Burns, and the statutory provisions in § 4-160(c) regarding legislative intent with respect to the status of the state as a litigant, this Court finds that the Plaintiff has properly invoked the Accidental Failure of Suit in order to reinstate his claim against the state.
The Defendant's Motion to Dismiss is hereby DENIED.