Opinion
No. MMX-CV-09-6000552-S
March 1, 2010
MEMORANDUM OF DECISION
This action arises out of an automobile accident that occurred on October 8, 2005, involving a vehicle driven by the plaintiff, Tyrone Tutko, and a vehicle driven by defendant Robert Dickinson and owned by defendant Rosedale Dodge Hyundai. An action for negligence was commenced on October 8, 2007. The court granted the defendants' motion for nonsuit for failure to comply with discovery, and a judgment of nonsuit was entered against the plaintiff on April 7, 2008.
On March 26, 2009, the plaintiff commenced the present action for negligence against the defendants. The plaintiff's revised complaint of June 30, 2009 alleges that, on or about October 8, 2005, the plaintiff was working for the United States Postal Service and delivering mail when the defendant Dickinson drove into the rear of the vehicle driven by the plaintiff, resulting in injuries to the plaintiff.
On October 26, 2009, the defendant filed a motion for summary judgment and an accompanying memorandum of law in support of that motion. On December 10, 2009, the plaintiffs filed a memorandum in opposition to the defendant's motion.
"Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the 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. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007). "In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law." (Internal quotation marks omitted.) CT Page 5993 Zielinski v. Kotsoris, 279 Conn. 312, 318, 901 A.2d 1207 (2006).
"Summary judgment may be granted where the claim is barred by the statute of limitations." Doty v. Mucci, 238 Conn. 800, 806, 679 A.2d 945 (1996). Summary judgment is appropriate on statute of limitation grounds when the "material facts concerning the statute of limitations [are] not in dispute . . ." Burns v. Hartford Hospital, 192 Conn. 451, 452, 472 A.2d 1257 (1984). "A summary judgment is proper where the affidavits do not set forth circumstances which would serve to avoid or impede the normal application of the particular limitations period." (Internal quotation marks omitted.) Collum v. Chapin, 40 Conn.App. 449, 453, 671 A.2d 1329 (1996).
The defendants argue that the court should grant their motion for summary judgment because the plaintiff's claims of negligence are barred by the two-year statute of limitations provided by General Statutes § 52-584. They further argue that Connecticut's accidental failure of suit statute, General Statutes § 52-592, is inapplicable in this case because: 1) the plaintiff consented to the dismissal of the prior action; and 2) the judgment of nonsuit entered in the original action did not involve mistake, inadvertence or excusable neglect. The defendants do not argue that the plaintiff failed to plead the statute. The plaintiff argues that § 52-592 is applicable in this case because the plaintiff did not consent to the dismissal of the original action and the original suit was dismissed due to the mistake, inadvertence or excusable neglect of the plaintiff's former counsel.
The defendants initially argued in their motion for summary judgment that the plaintiff failed to bring his original action within the two-year limitations period. The defendants conceded that claim at oral argument and are no longer pursuing that ground.
The plaintiff does not contend that the present action was brought within the two-year statute of limitations provided by § 52-584, and instead wholly relies on § 52-592.
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 the action has been dismissed for want of jurisdiction, or the action has been otherwise defeated . . . for any matter of form . . . the plaintiff . . . may commence a new action . . . for the same cause at any time within one year after the determination of the original action . . ."
Ordinarily, "§ 52-592 is considered to be a matter to be pleaded in avoidance to a statute of limitations special defense." Beckenstein Enterprises-Prestige Park, LLC v. Keller, 115 Conn.App. 680, 690-91, 974 A.2d 764, cert. denied, (2009). The plaintiff here has failed to do so. However, "[o]ur Supreme Court has repeatedly held that [t]he failure to file a special defense may be treated as waived when it appears that no objection was raised to the offer of evidence on the issue at the trial . . . [Waiver] is equally applicable when no objection is made to the statutory basis of a motion for summary judgment." (Citations omitted; internal quotation marks omitted.) Mountaindale Condominium Ass'n., Inc. v. Zappone, 59 Conn.App. 311, 318, 757 A.2d 608 (2000). It is the court's opinion that waiver likewise applies when no objection is made to a plaintiff's failure to plead in avoidance to a special defense. Accordingly, the court addresses this claim in substance because the defendant has not objected to the plaintiff's failure to plead § 52-592. The court also notes that the plaintiff relied on the statute in its memorandum of law in opposition to the motion for summary judgment and in oral argument before the court. See Spears v. Garcia, 66 Conn.App. 699 (2001). Thus, the defendants were sufficiently apprised that the plaintiff was relying in § 52-592.
This conclusion is not a novel one. See Karat v. Deere Co., Inc., Superior Court, judicial district of Hartford, Docket No. CV 92 0505980 (April 13, 1994, Sheldon, J.) ("Though the plaintiff has as yet not pleaded [§] 52-592(a) in avoidance of the defendant's defense, the Court will address his claim in substance because the defendant has not objected to that failure to plead").
"Our Supreme Court has long held that § 52-592 is remedial and is to be liberally interpreted . . . Its essential purpose is to ensure the plaintiff the right to a trial of his claim . . . That broad and liberal purpose is not to be frittered away by any narrow construction. The important consideration is that by invoking judicial aid, a litigant gives timely notice to his adversary of a present purpose to maintain his rights before the courts." (Citations omitted; internal quotation marks omitted.) Tellar v. Abbott Laboratories, Inc., 114 Conn.App. 244, 250, 969 A.2d 210 (2009). "To enable a plaintiff to meet the burden of establishing the right to avail himself or herself of the statute, a plaintiff must be afforded an opportunity to make a factual showing that the prior dismissal was a `matter of form' in the sense that the plaintiff's noncompliance with a court order occurred in circumstances such as mistake, inadvertence or excusable neglect." Ruddock v. Burrowes, 243 Conn. 569, 576-77, 706 A.2d 967 (1998).
The Supreme Court "[has] not often decided that a plaintiff, after a dismissal under an applicable rule of practice, should be denied access to the statute because the prior judgment was not a `matter of form.' When [it has] done so, [the] decision has focused on conduct other than mistake, inadvertence or excusable neglect." Id., 577. "[I]t is appropriate to consider each case along a continuum; at one extreme are dismissals for mistake or inadvertence, at the other extreme are dismissals for serious misconduct or a series of cumulative transgressions." Tellar v. Abbott Laboratories, Inc., supra, 114 Conn.App. 251.
In Tellar, the Appellate Court overturned a trial court decision that held § 52-592 to be inapplicable because "[t]he conduct . . . was neither repeated nor protracted. It consisted of a singular failure to comply with a discovery request . . ." Id., 252. The court explained that such a situation "invokes the type of `excusable neglect' that our Supreme Court provided for in Ruddock, mandating application of § 52-592." (Internal quotation marks omitted.) Id., 253.
The present case similarly concerns a nonsuit for failure to comply with a discovery request. In her affidavit, the plaintiff's prior counsel explains the circumstances surrounding the original case's dismissal. She attests that she asked her paralegal at the time to type the discovery responses and produce them to counsel; this was not done. Following the motion for nonsuit, prior counsel drafted a notice of compliance and an objection to the motion that, unbeknownst to her, were not filed with the court. The plaintiff did not, contrary to the defendants' claims, consent to the dismissal; rather, both the plaintiff and his counsel remained unaware of the judgment for nonsuit until after the four-month window to reopen the case had expired. Prior counsel further attests that the failure to reopen the nonsuit was based upon her oversight of the court notice rather than for any strategic reason. The defendants have offered no evidence to refute these circumstances, and the procedural history of the case does not reveal any serious misconduct or a series of cumulative transgressions on the part of the plaintiff's prior counsel.
As discussed earlier, § 52-592 is a saving, remedial statute and is to be liberally interpreted. The plaintiff should have his day in court and should be shielded from the fallibility of his prior counsel. In light of the affidavit of the plaintiff's prior counsel, and the Appellate Court's holding in Tellar, the circumstances of this case invoke the excusable neglect provided for in Ruddock, mandating application of § 52-592.
Accordingly, the defendants' motion for summary judgment is denied.