Opinion
No. CV 05 4003194
June 4, 2008
MEMORANDUM OF DECISION RE MOTION TO DISMISS
For the reasons herein stated, although this matter was brought before the court as a motion to dismiss, the court treats it as a motion to strike, which motion is hereby granted.
On May 20, 2005, the plaintiff, Deborah J. Tedford, administrator of the Estate of Leslie Buck, filed a wrongful death action against the defendant, Charles F. Buck. In the complaint, the plaintiff alleges that at all times relevant to this action, the plaintiff's decedent was married to the defendant. The plaintiff further alleges that, during the course of the marriage, the defendant became involved in a romantic relationship with another woman, which he kept secret from the plaintiff's decedent. The plaintiff also contends that, as a result of this extramarital relationship and financial motives, the defendant planned and prepared to take the life of the plaintiff's decedent. The plaintiff alleges that such preparations led the defendant to solicit his long-time friend, Russell Kirby, to take the life of the plaintiff's decedent. The plaintiff specifically avers that, on May 2, 2002, Kirby, on behalf of the defendant, kidnapped, assaulted, and battered the plaintiff's decedent, prior to her escape from his control. The plaintiff further claims that, on May 4, 2002, the defendant brutally, with malice aforethought, attacked, assaulted, and battered the plaintiff's decedent causing severe and fatal injuries, whereupon he left her to die at the bottom of the stairs within their home.
On June 14, 2005, the defendant filed a motion to dismiss the complaint on the ground that the plaintiff's action is barred by the running of the statute of limitations applicable to wrongful death claims and, therefore, the court lacks subject matter jurisdiction. The parties have submitted multiple memoranda of law in support of and in opposition to the motion prior and subsequent to the short calendar hearing on the matter on January 14, 2008.
"Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction." St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003). "A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether . . . the court is without jurisdiction." (Internal quotation marks omitted.) Caruso v. Bridgeport, 285 Conn. 618, 627, 941 A.2d 266 (2008).
In his memoranda of law in support of the motion to dismiss, the defendant argues that the applicable time limitation for a wrongful death claim is two years from the date of death, pursuant to General Statutes § 52-555. The defendant further argues that this action was commenced on May 6, 2005, more than two years after the date of death of the plaintiff's decedent on May 4, 2002. Accordingly, the defendant argues that the claim is barred by the running of the statute of limitations, and that a motion to dismiss is the appropriate procedural vehicle to challenge the matter. The defendant also avers that the fraudulent concealment statute does not apply to wrongful death actions; therefore, the plaintiff may not allege that the statute of limitations was tolled by the defendant's fraudulent concealment of the cause of action. Further, the defendant argues that the plaintiff has not properly pleaded fraudulent concealment. Simply, the defendant argues that the matter should be dismissed because the court lacks subject matter jurisdiction.
The plaintiff counters that the defendant's motion to dismiss is not the appropriate procedural vehicle to test the plaintiff's complaint. Rather, the plaintiff claims it should be tested via a motion to strike, and that the wrongful death action is timely inasmuch as the fraudulent concealment statute, General Statutes § 52-595, applies to the action.
I Statute of Limitations Defense May be Raised by a Motion to Dismiss
Generally speaking, a statute of limitations defense must be raised by special defense and cannot be raised by a motion to dismiss. See Ross Realty Corp. v. Surkis, 163 Conn. 388, 391, 311 A.2d 74 (1972); see also Dixon v. Evans, Superior Court, judicial district of Litchfield, Docket No. CV 07 5001657 (April 22, 2008, Pickard, J.); Proto v. Camrac, Inc., Superior Court, judicial district of New Haven at Meriden, Docket No. CV 08 5002983 (March 7, 2008, Gilligan, J.); Valentin v. X Bankers Check Cashing, Superior Court, judicial district of Fairfield, Docket No. CV 06 6000557 (February 15, 2008, Arnold, J.) [45 Conn. L. Rptr. 124]; Practice Book § 10-50. Nevertheless, "[w]here . . . a specific time limitation is contained within a statute that creates a right of action that did not exist at common law, then the remedy exists only during the prescribed period and not thereafter . . . In such cases, the time limitation is not to be treated as an ordinary statute of limitation, but rather is a limitation on the liability itself, and not of the remedy alone . . . [U]nder such circumstances, the time limitation is a substantive and jurisdictional prerequisite, which may be raised [by the court] at any time, even by the court sua sponte, and may not be waived." (Internal quotation marks omitted.) Ambroise v. William Raveis Real Estate, Inc., 226 Conn. 757, 766-67, 628 A.2d 1303 (1993), quoting Ecker v. West Hartford, 205 Conn. 219, 232, 530 A.2d 1056 (1987) (wrongful death action).
In the present case, the plaintiff has brought a one-count wrongful death action. Our wrongful death statute, § 52-555(a) provides in relevant part: "[i]n any action surviving to or brought by an executor or administrator for injuries resulting in death . . . such executor or administrator may recover from the party legally at fault for such injuries just damages . . . provided no action shall be brought to recover such damages and disbursements but within two years from the date of death . . ." Our Supreme Court has held that "no action for wrongful death existed at common law or exists today in Connecticut except as otherwise provided by the legislature." (Internal quotation marks omitted.) Greco v. United Technologies Corporation, 277 Conn. 337, 349, 890 A.2d 1269 (2006), quoting Ecker v. West Hartford, supra, 205 Conn. 231. "Thus, § 52-555 is not to be treated as an ordinary statute of limitation[s] . . . Rather, it is a limitation on the liability itself, and not of the remedy alone." (Citations omitted; internal quotation marks omitted.) Greco v. United Technologies Corporation, supra, 277 Conn. 350. "Accordingly, . . . the [two] year limitation contained within [General Statutes § 52-555] is a jurisdictional prerequisite which cannot be waived and which must be met in order to maintain an action under [§ 52-555]." Ecker v. West Hartford, supra, 205 Conn. 233. Thus, the two-year statute of limitations applicable to wrongful death actions may be raised by a motion to dismiss.
Furthermore, the court notes, with regard to the plaintiff's argument that a motion to strike is the proper vehicle to raise the statute of limitations defense, that while a motion to strike may be used to challenge a wrongful death claim on the basis of the running of the statute of limitations, it is a permissive vehicle and not a mandatory and exclusive vehicle. In Greco the Supreme Court noted: "[b]ecause § 52-555 creates liability where none formerly existed [at common law] . . . it is undisputed that the defendants properly raised the limitation period of § 52-555 in a motion to strike." (Citations omitted; internal quotation marks omitted.) Greco v. United Technologies Corporation, supra, 277 Conn. 344 n. 12. The Supreme Court, however, did not hold that a motion to strike is the only procedural means to raise the limitation period of § 52-555, rather the court held, simply, that it is a proper means.
II Fraudulent Concealment Doctrine Applies to Wrongful Death Claims
In the present case, the applicable statute of limitations is articulated in General Statutes § 52-555, Connecticut's wrongful death statute, which provides in relevant part: "no action shall be brought . . . but within two years from the date of death . . ." Thus, as a general rule, to survive a motion to dismiss a plaintiff must commence a wrongful death action "within two years from the date of death" of the plaintiff's decedent.
Here, the plaintiff's complaint states that the decedent died on May 4, 2002. The marshal's return of service, filed with the complaint, states that the defendant was served on May 6, 2005, well past the two-year statute of limitations period. The plaintiff, however, argues and alleges in her memoranda, that the statute of limitations has been tolled, pursuant to General Statutes § 52-595, Connecticut's fraudulent concealment statute, as a result of the defendant's fraudulent concealment of the existence of the present cause of action. Section 52-595 provides: "[i]f any person, liable to an action by another, fraudulently conceals from him the existence of the cause of such action, such cause of action shall be deemed to accrue against such person so liable therefor at the time when the person entitled to sue thereon first discovers its existence." The defendant counters that there is no appellate authority which states that the fraudulent concealment statute applies to the wrongful death statute.
The court is unaware of any appellate authority which expressly states that the fraudulent concealment statute applies to the wrongful death statute. However, the court finds that Superior Court precedents and the rules of statutory construction indicate that it is indeed legally permissible to allege fraudulent concealment in response to a wrongful death claim.
In Vitale v. Kowal, Superior Court, judicial district of New Haven, Docket No. CV 03 0480765 (March 30, 2004, Jones, J.), the court found that the doctrine of fraudulent concealment, pursuant to § 52-595, tolled the running of statute of limitations of the wrongful death claim, pursuant to § 52-555. Additionally, the court in Michaud v. Beckman, Superior Court, judicial district of New Haven, Docket No. CV 99 0268302 (May 15, 2002, Weise, J.), addressed the argument that the fraudulent concealment doctrine tolled the running of the statute of limitations applicable to the wrongful death claim; the court ultimately found that the plaintiffs did not present sufficient evidence indicating fraud on the defendant's part.
Furthermore, "[i]t is well settled that [courts] are not permitted to supply statutory language that the legislature may have chosen to omit . . . Moreover, [i]t is a principle of statutory construction that a court must construe a statute as written . . . Courts may not by construction supply omissions . . . or add exceptions merely because it appears that good reasons exist for adding them . . . The intent of the legislature, as this court has repeatedly observed, is to be found not in what the legislature meant to say, but in the meaning of what it did say . . . It is axiomatic that the court itself cannot rewrite a statute to accomplish a particular result. That is a function of the legislature." (Citations omitted; internal quotation marks omitted.) Bloomfield v. United Electrical, Radio and Machine Workers of America, Connecticut Independent Police Union, Local 14, 285 Conn. 278, 288-89, 929 A.2d 561 (2008). Section 52-595 provides: "[i]f any person, liable to an action by another, fraudulently conceals from him the existence of the cause of such action, such cause of action shall be deemed to accrue against such person so liable therefor at the time when the person entitled to sue thereon first discovers its existence." (Emphasis added.) Based on the rules of statutory construction, the court is required to construe the fraudulent concealment statute as written, and may not by construction supply omissions. Section 52-595 clearly and broadly applies to those persons "liable to an action by another." This language indicates that, had the legislature intended to except wrongful death claims from the applicable scope of the fraudulent concealment statute, it would have done so. The court will not rewrite the statute to accomplish the particular result proffered by the defendant, and accordingly finds that the plaintiff may allege the doctrine of fraudulent concealment in response to the defendant's claim that the wrongful death action is time barred by the running of the two-year statute of limitations. The court, however, notes that the plaintiff must still comply with the pleading requirements that apply to allegations of fraudulent concealment.
III Pleading Requirements for Fraudulent Concealment CT Page 9359
On the basis of the court's review of the pleadings, the court notes that the plaintiff's claim of fraudulent concealment is not properly before this court because the plaintiff has not affirmatively pleaded General Statutes § 52-595. "In order to raise a claim of fraudulent concealment, the party challenging a statute of limitations defense must affirmatively plead it . . . [A] reply . . . contain[ing] a general denial of the defense . . . [is] insufficient." (Citations omitted.) Beckenstein v. Potter Carrier, Inc., 191 Conn. 150, 163, 464 A.2d 18 (1983); see also Mountaindale Condominium Ass'n., Inc. v. Zappone, 59 Conn.App. 311, 319 n. 11, 757 A.2d 608, cert. denied, 254 Conn. 947, 762 A.2d 903 (2000). The court notes, however, that the plaintiff likely has not done so because she has no obligation to plead matters in avoidance of the statute of limitations in her complaint. Our Supreme Court has held "that matters in avoidance of the [s]tatute of [l]imitations need not be pleaded in the complaint but only in response to such a defense properly raised." Ross Realty Corp. v. Surkis, supra, 163 Conn. 392. Here, the defendant raised the statute of limitations via a motion to dismiss. If the defendant had raised the statute of limitations in a special defense, the plaintiff may well have affirmatively responded with a fraudulent concealment claim. Accordingly, the court finds that the plaintiff has not been given the full opportunity, to which she is entitled, to allege fraudulent concealment in response to the defendant's claim regarding the running of the statute of limitations. Therefore, the court must examine the implications this motion to dismiss would have on this action, if granted; the potential effect it would have in depriving the plaintiff of the opportunity to plead fraudulent concealment in response to the defendant's claim regarding the running of the statute of limitations; and whether the court may construe the defendant's motion to dismiss as a motion to strike in order to allow the plaintiff the opportunity to properly plead fraudulent concealment.IV Motion to Dismiss May Be Construed as a Motion to Strike
The defendant argues that the language of § 52-555 deprives the court of subject matter jurisdiction in this case, and that the court is, therefore, required to grant the motion to dismiss. The court disagrees.
"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." (Internal quotation marks omitted.) Gurliacci v. Mayer, 218 Conn. 531, 542, 590 A.2d 914 (1991). In the present case, the fact that the plaintiff's complaint failed to allege facts that would have removed it from strict adherence to the two-year statute of limitations applicable to wrongful death claims reflects that the complaint failed to state a legally sufficient cause of action. It would be erroneous for this court to dismiss the plaintiff's wrongful death claim, even though no claim of fraudulent concealment was properly pleaded in the complaint. Our Supreme Court has held "that if a pleading . . . on its face is legally insufficient, although facts may indeed exist which, if properly pleaded, would establish a cause of action upon which relief could be granted, a motion to strike is required . . . A motion to dismiss, by contrast, properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." (Citations omitted; internal quotation marks omitted.) Id., 544. "There is a significant difference between asserting that a plaintiff cannot state a cause of action and asserting that a plaintiff has not stated a cause of action, and therein lies the distinction between the motion to dismiss and the motion to strike." Egri v. Foisie, 83 Conn.App. 243, 247, 848 A.2d 1266, cert. denied, 271 Conn. 931, 859 A.2d 930 (2004).
"The distinction between the motion to dismiss and the motion to strike is not merely semantic. If a motion to dismiss is granted, the case is terminated, save for an appeal from that ruling . . . The granting of a motion to strike, however, ordinarily is not a final judgment because our rules of practice afford a party a right to amend deficient pleadings. See Practice Book § 10-44. That critical distinction implicates a fundamental policy consideration in this state. Connecticut law repeatedly has expressed a policy preference to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his or her day in court . . . Our practice does not favor the termination of proceedings without a determination of the merits of the controversy where that can be brought about with due regard to necessary rules of procedure . . . For that reason, [a] trial court should make every effort to adjudicate the substantive controversy before it, and, where practicable, should decide a procedural issue so as not to preclude hearing the merits of an appeal." (Citations omitted; internal quotation marks omitted.) Egri v. Foisie, supra, 83 Conn.App. 249-50.
In the present case, the defendant's motion to dismiss in effect challenges the failure of the plaintiff, in her original complaint, to invoke the doctrine of fraudulent concealment in order to establish a tolling of the statute of limitations. Since this challenge is to the legal sufficiency of the complaint, the defendant's motion to dismiss was improper; the plaintiff's complaint is within the subject matter jurisdiction of this trial court, albeit subject to a motion to strike for failure to state a legally sufficient claim. Accordingly, the court concludes that the defendant's motion to dismiss should be treated as a motion to strike.
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). The role of the trial court in ruling on a motion to strike is "to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997). "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).
The court is unpersuaded that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court. As previously discussed, however, the plaintiff has not, as yet, properly pleaded a claim of fraudulent concealment alleging a tolling of the statute of limitations for the wrongful death claim. Therefore, the court is confined, under the rules applicable to motions to strike, to look solely to the complaint in order to determine whether it fails to state a legally sufficient claim for wrongful death. Under the wrongful death statute, § 52-555, "no action shall be brought . . . but within two years from the date of death . . ." Applying this statute, the court grants the motion to strike the complaint because the decedent died more than two years before the commencement of this lawsuit; a motion to strike is allowed because the wrongful death statute fixes the time within which the cause of action must be asserted. See Forbes v. Ballaro, 31 Conn.App. 235, 624 A.2d 389 (1993). Thus, in construing the motion to dismiss as a motion to strike, the plaintiff is provided with the opportunity to replead the complaint so as to include an affirmatively plead fraudulent concealment claim.
Since the court construes the motion to dismiss as a motion to strike, the court is limited to the facts alleged in the complaint in determining the outcome of the motion. Accordingly, the defendant's motions to strike the affidavits attached to the plaintiff's memoranda of law in opposition to the motion to dismiss (#112 and #123) are moot and need not be considered by the court.
For the foregoing reasons, the defendant's motion to dismiss is treated as a motion to strike and, thus treated, is hereby granted.