Opinion
No. HHB CV 05 4003528 S
May 10, 2005
MEMORANDUM OF DECISION
I
The present matter was filed on January 14, 2005 by the plaintiff Wallace Webster, II, seeking damages as a result of injuries allegedly sustained in a motor vehicle accident that occurred on January 17, 2003. Wallace, a passenger in a car owned by the defendant Demetriah Webster, alleges that while traveling south on Route 9 in New Britain, Connecticut, the defendant Jesus O. Roche, the operator of a car owned by the defendant Sonia N. Torres, collided with the rear of Webster's motor vehicle. He also alleges that his driver was negligent in various ways, including failing to keep a proper lookout and by stopping suddenly.
On January 15, 2005, the marshal served the defendant Demetriah Webster, in hand, and on January 17, 2005, attempted abode service on the defendants Roche and Torres. Counsel for the latter defendants appeared and, after initially seeking an extension of time to respond to the complaint, on April 13, 2005, objected to a motion for default for failure to plead maintaining that one week earlier they had advised the plaintiff's counsel that they would file a motion to dismiss for lack of personal jurisdiction and insufficiency of service of process. On April 13, 2005, the plaintiff served the two defendants through the commissioner of motor vehicles pursuant to General Statutes § 52-63. One day later, the defendants moved to dismiss the action on the grounds that the abode service was improper as the defendants had not been living at that address for approximately one and one-half years prior to the service. On April 15, 2005, the plaintiff sought to amend his return of process to allow for the substitute service.
General Statutes § 52-63 states, in part: "(a) Any operator or owner of a motor vehicle at the time of issuance of his license or registration shall be deemed to have appointed the Commissioner of Motor Vehicles as his attorney and to have agreed that any process in any civil action against him on account of any claim for damages resulting from his alleged negligence or the alleged negligence of his servant or agent in the operation of any motor vehicle in this state may be served upon the commissioner as provided in this section and shall have the same validity as if served upon the owner or operator personally, even though the person sought to be served has left the state prior to commencement of the action or his present whereabouts is unknown."
II CT Page 8676
The plaintiff does not contest the abode service challenge. However, the plaintiff argues that as long as the amended service was procured prior to the motion to dismiss filing, it should be granted pursuant to General Statutes § 52-72, which states, in part, "[a]ny court shall allow a proper amendment to civil process which . . . is for any . . . reason defective . . ." The plaintiff argues that our Supreme Court's ruling in Concept Associates, Ltd. v. Board of Tax Review, 229 Conn. 618, 642 A.2d 1186 (1994), allowing for the amendment of process to correct an improper return date supports this claim.
The problem, however, as pointed out by the defendants, is that by the time the substitute service was made, the statute of limitations of two years had expired. Thus, this action against the defendants Roche and Torres can survive only if the substitute service to the commissioner of motor vehicles satisfies the requirements of General Statutes § 52-593a. statute of limitations if: (1) the papers are delivered to the marshal prior to the expiration of the time limitation and (2) service is made within thirty days. In this case, the parties agree that the time limitation is two years, i.e., January 18, 2005, and that the papers were timely delivered to the marshal. They were certainly not served on the contesting defendants within thirty days.
General Statutes § 52-584 states: "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 of a physician, surgeon, dentist, podiatrist, chiropractor, hospital or sanatorium, shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been 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 in such action are finally closed."
General Statutes § 52-593a states: "(a) Except in the case of an appeal from an administrative agency governed by section 4-183, a cause or right of action shall not be lost because of the passage of the time limited by law within which the action may be brought, if the process to be served is personally delivered to a state marshal authorized to serve the process and the process is served, as provided by law, within thirty days of the delivery.
(b) In any such case, the state marshal making service shall endorse under oath on such state marshal's return the date of delivery of the process to such state marshal for service in accordance with this section."
The plaintiff indicates that there is some question, due to the police reports, as to whether the accident occurred on January 17, 2003 or January 18, 2003.
In Ruffino v. Gasparri, Superior Court, judicial district of Waterbury, Docket No. CV 97 0137998 (September 8, 1997, Pellegrino, J.) ( 22 Conn. L. Rptr. 534) and Echavarria v. Fadner, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 000180714 (March 30, 2001, Mintz J.) ( 29 Conn. L. Rptr. 467), summary judgment was granted as a result of service made beyond the statutory time period, then fifteen days, of § 52-593a. In Hibner v. Bruening, 78 Conn.App. 456, 463 n. 3, 828 A.2d 150 (2003), a case dealing with the ability to use the substitute service process of § 52-63, the court noted that "[u]nder General Statutes § 52-584, the plaintiffs' claims against the defendants had a two-year statute of limitations, which would have expired on September 30, 2001. Nardini's return indicates that he received the writ of summons and complaint from the plaintiffs' attorney on September 29, 2001, one day before the statute of limitations was to expire. . . . Due to the fact that the process was delivered to the marshal before the statute of limitations expired, the plaintiffs' complaint fell within General Statutes § 52-593a. That statute allows a right of action to continue after the statute of limitations has expired if the marshal (1) receives the writ of summons and complaint before the statute of limitations has expired and (2) service of process occurs within fifteen days of the marshal receiving the papers. Accordingly, Nardini had until October 14, 2001, to achieve service of process or the statute of limitations would have expired. Service was made on the commissioner on October 12, 2001." Indeed, in Stellato v. Cuccaro, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV 98 063811 (March 8, 2000, Nadeau, J.) ( 26 Conn. L. Rptr. 664), the court allowed an amendment in a somewhat different but analogous situation only because the new service on the defendants still met the requirements of § 52-593a.
Notwithstanding the remedial purpose of § 52-72, the substitute service on April 13, 2005 does not comply with the additional requirements of § 52-593a and accordingly the motion to amend is denied. As noted previously, the plaintiff does not contest the abode service challenge and thus, the motion to dismiss for lack of personal jurisdiction is granted.
Berger, J.