Opinion
No. CV 06 5000972 S
March 21, 2007
MEMORANDUM OF DECISION
The defendant, Christopher Bocwinski, administrator of the estate of Leo Bocwinski, moves to dismiss this negligence action brought by the plaintiff, Marion Amzilen, based on the expiration of the two-year statute of limitations set forth in General Statutes § 52-584. The plaintiff relies on the accidental failure of suit statute, General Statutes § 52-592, to save this lawsuit.
The facts pertinent to this motion to dismiss are undisputed. The motor vehicle accident at the center of this negligence claim occurred on June 12, 2004. Within the two-year limitation period, on April 19, 2006, abode service was made at the supposed residence of Leo Bocwinski, and that process was returned to the court. Unfortunately, Leo Bocwinski had died on February 21, 2006, before service of process, and the original suit was dismissed for that reason on June 12, 2006. On November 2, 2006, the plaintiff commenced the present action against the administrator of Leo Bocwinski's estate.
If the accidental failure of suit statute applies, this action may proceed because it was commenced within one year of the dismissal of the original action. If, however, § 52-592 is inapplicable, then the two-year limitation of § 52-584 would bar suit.
The precise issue posed in this case was resolved by our Appellate Court in Contadini v. DeVito, 71 Conn.App. 697 (2002). Facing essentially the identical procedural and factual sequence as in the present case, the Appellate Court held that the first action, begun by abode service on a deceased person, "legally existed" when brought within the two year period of § 52-584, Id., 702. Therefore, § 52-592 was available to afford a second opportunity to sue the representative of the estate based on the same set of allegations, despite the running of the two-year limitation period under § 52-584, Id.
The defendant concedes that the holding of Contadini, supra, compels denial of this motion to dismiss. However, the defendant contends that a later decision contradicts the holding of Contadini, supra, and justifies dismissal of this case based on the inapplicability of the accidental failure of suit statute.
In Davis v. Family Dollar Store, 78 Conn.App. 235 (2003), the Appellate Court ruled that a second suit was not authorized under § 52-592 and was prohibited by § 52-584. The court disagrees that the decisions in Davis, supra, and Contadini, supra, conflict.
The Davis case, supra, is readily distinguishable from the facts of Contadini, supra, and the present case. In Davis, supra, no service of process was ever attempted within the two-year statute of limitations, Id., 236. Also no return of service to court was ever made, Id., 241. Because no case was ever filed no dismissal of any original action entered, Id. Thus, in Davis, supra, the plaintiff attempted to evade the statute of limitations using the accidental failure of suit statute in a situation where there was no previous action which had failed, Id.
Here, the previous action was begun within the statute of limitations and was dismissed because of invalid service of process due to the death of the putative defendant. All the requirements of the accidental failure of suit were met.
The decision of Contadini v. DeVito, supra, dictates that this motion to dismiss be denied.