Opinion
No. CV 03 0476807 S
July 9, 2004
MEMORANDUM OF DECISION MOTION TO STRIKE
The plaintiff has filed a motion to strike the defendant's First Special Defense, which claims that the plaintiff's action is barred by the statute of limitations. The plaintiff argues that the present action was timely filed. A summary of the factual background with the relevant dates follows.
On November 16, 2000, the plaintiff was struck by a vehicle operated by the decedent, Alice Houseworth, resulting in the plaintiff's claimed injuries and damages. On October 3, 2002, Alice Houseworth died. On April 2, 2003, Marguerite Houseworth was appointed Executrix of the Estate of Alice Houseworth by the probate court. The plaintiff's complaint, dated April 9, 2003, bearing a return date of May 6, 2003, was served on Judge Diglio of the Hamden Probate Court on April 17, 2003.
On August 8, 2003, the defendant filed an Answer and Special Defenses, wherein the First Special Defense asserts that the plaintiff's action is barred by the statute of limitations pursuant to General Statutes § 52-584 and § 45a-375. The plaintiff has filed this motion to strike the defendant's First Special Defense on the grounds that the statute of limitations was tolled, and therefore, service of process was timely provided.
The legal standards for reviewing a motion to strike are well-settled. "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." Mingachos v. CBS, Inc., 196 Conn. 91, 108, 491 A.2d 368 (1985). A motion to strike shall be granted if "the plaintiff's complaint [does not] sufficiently [state] a cognizable cause of action as a matter of law." Mora v. Aetna Life and Casualty Ins. Co., 13 Conn. App. 208, 211, 535 A.2d 390 (1988).
A motion to strike "admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis omitted.) Id. "A motion to strike is properly granted where a plaintiff's complaint alleges legal conclusions unsupported by facts." Id. "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 170, 544 A.2d 1185. (1988). A motion to strike "is to be tested by the allegations of the pleading demurred to, which cannot be enlarged by the assumption of any fact not therein alleged." (Internal quotation marks and citations omitted.) Alarm Applications Co. v. Simsbury Volunteer Fire Co., 179 Conn. 541-50, 427 A.2d 822 (1980).
Upon deciding a motion to strike, the trial court must construe the "plaintiff's complaint in [a] manner most favorable to sustaining its legal sufficiency." Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991). "The allegations of the pleading involved are entitled to the same favorable construction a trier would be required to give in admitting evidence under them and if the facts provable under its allegations would support a defense or a cause of action, the motion to strike must fail." Mingachos v. CBS, Inc., supra. 196 Conn. 108-09. However, if the plaintiff has alleged mere conclusions of law unsupported by the requisite facts, the motion to strike should be granted. Cavallo v. Derby Savings Bank, 188 Conn. 281, 285, 449 A.2d 986 (1982).
Ordinarily a claim that an action is barred by the lapse of the statute of limitations must be pleaded by a special defense and not raised by a motion to strike. Practice Book § 10-50; Mac's Car City Inc. v. DiNigris, 18 Conn. App. 525, 528, 559 A.2d 712 (1989). A motion to strike may be used to raise the defense of the statute of limitations when the parties agree that the complaint sets forth all the facts pertinent to the question whether the action is barred by the statute of limitations. Vilcinskas v. Sears, Roebuck Co., 144 Conn. 170, 171-72, 127 A.2d 814 (1956).
Section 52-584 of the General Statutes concerns the limitation of actions for injury to person or property. This section provides in relevant part that:
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, . . . 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.
Pursuant to § 52-584, the plaintiff's action must be brought within two years of the accident, which occurred on November 16, 2000. The statute of limitations expired on November 16, 2002. As the decedent died on October 3, 2002, that being after October 1, 1987, General Statutes § 45a-375 applies.
General Statutes § 45a-375 concerns the statute of limitations concerning the estates of decedents. This statute provides in pertinent part that:
Claims shall be subject to the following provisions:
(a) If any person against whom a claim exists dies within thirty days prior to the date the applicable statute of limitations on such claim would otherwise expire, a period of thirty days from the date of the appointment of his fiduciary shall be allowed within which to present such claim.
(b) The running of any limitation period applicable to the claim of any person, shall, provided such claim was presented to the fiduciary prior to expiration of the applicable period of limitations, be suspended from the time of presentation of such claim until such claim has been rejected, in whole or in part, as provided in section 45a-360, provided upon such rejection, such person may commence suit or file an application as provided in section 45a-363.
(c) Except as provided in subsections (b) and (d) of this section, no claim may be presented and no suit on such claim may be commenced against the fiduciary, the estate of the decedent, or any creditor or beneficiary of such estate but within (1) two years from the date of the decedent's death or (2) the date upon which the statute of limitations applicable to such claim, including any period of limitation established pursuant to section 45a-357, would otherwise have expired, whichever shall first occur. CT Page 10907
(d) With respect to any claim arising after the death of a decedent, no claim may be presented and no suit on such claim may be commenced against the fiduciary, the estate of the decedent, or any creditor or beneficiary of the estate but within (1) two years from the date the claim arose or (2) the date upon which the statute of limitations applicable to such claim, including any period of limitation established pursuant to section 45a-357, would otherwise have expired, whichever shall first occur.
"A statute of limitation or of repose is designed to (1) prevent the unexpected enforcement of stale and fraudulent claims by allowing persons after the lapse of a reasonable time, to plan their affairs with a reasonable degree of certainty, free from the disruptive burden of protracted and unknown potential liability, and (2) to aid in the search for truth that may be impaired by the loss of evidence, whether by death or disappearance of witnesses, fading memories, disappearance of documents or otherwise." Doe v. Shimkus, Superior Court, Judicial District of Hartford at Hartford No. CV 03-0822147 So. (Mar. 19, 2004) (Wagner, JTR) ( 36 Conn. L. Rptr. 711); quoting Deleo v. Nusbaum, Conn. 588, 596, 821 A.2d 744 (2003).
"The purpose of the statute of limitations contained in § 45a-375 seems clear. The legislative history reveals that its purpose is to protect the beneficiaries of estates from being held liable in the future. 30 H.R. Proc., Pt. 22, 1987 Sess., p. 8135. In response to a constitutional defect, Public Act 89-202 amended the last date for presenting a claim from two years from the date of the appointment of the first fiduciary to the date of decedent's death. Conn. Joint Standing Committee Hearings, Judiciary Part 4, 1989 Sess., p. 1339. Limiting the period to bring claims to two years not only protects beneficiaries from suit, but also promotes the strong legislative policy of the probate code that favors the speedy administration of estates. See Matey v. Estate of Dember, 256 Conn. 456, 478, 774 A.2d 113 (2001). Furthermore, the language of § 45a-375 clearly asserts its relationship to other existing regulations: the language `whichever shall first occur' cuts short competing statutes of limitations." Doe v. Shimkus, supra. The relevant statute of limitations, according to § 45a-375(c)(2), therefore is § 52-584, which expired on November 16, 2002.
The history of this statute indicates that P.A. 89-202 amended it so as to change the last date for presenting a claim from two years from the date of appointment of the first fiduciary to the date of the decedent's death.
"In construing two seemingly conflicting statutes, we are guided by the principle that the legislature is always presumed to have created a harmonious and consistent body of law. Accordingly, if two statutes appear to be in conflict but can be construed as consistent with each other, then the court should give effect to both. Spears v. Garcia, 263 Conn. 22, 32, 818 A.2d 37 (2003). The process of statutory interpretation involves a reasoned search to determine the meaning of the statutory language as applied to the facts of the case. In seeking to determine that meaning, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common-law principles governing the same general subject matter. Commissioner of Social Sevices v. Smith, 265 Conn. 723, 734 (2003). It is a well-recognized rule of statutory construction that the legislature is presumed to know all the existing statutes, the judicial interpretation of them, and the effect that its action or nonaction will have on them. Mack v. Saars, 150 Conn. 290, 298 (1963)." Doe v. Shimkus, Superior Court, Judicial District of Hartford at Hartford, No. CV 03-0822147 So. (Mar. 19, 2004) (Wagner, J.T.R.).
The plaintiff argues that the statute of limitations for the present claim was tolled as a matter of law from the decedent's death on October 3, 2002 until the appointment of a fiduciary for the estate, which occurred on April 2, 2003. Therefore, service of process was properly effectuated on April 17, 2003. The plaintiff contends that § 45a-375 "does not extinguish the common law principal of equitable tolling," and instead, places a two-year maximum period from the date of the tortfeasor's death as a limitation upon any common-law tolling or other circumstance which would extend the statute of limitations until the appointment of a fiduciary for the estate.
"Of particular relevance in this case is the . . . principle that [w]hen a statute is in derogation of common law or creates a liability where formerly none existed, it should receive a strict construction and is not to be extended, modified, repealed or enlarged in its scope by the mechanics of [statutory] construction . . . In determining whether or not a statute abrogates or modifies a common law rule the construction must be strict, and the operation of a statute in derogation of the common law is to be limited to matters clearly brought within its scope." (Internal quotation marks omitted.) Chada v. Charlotte Hungerford Hospital, 77 Conn. App. 104, 112-13 (2003) 822 A.2d 303 (2003); quoting Spears v. Garcia, 263 Conn. 22, 28, 818 A.2d 37 (2003).
Judge Corradino addressed this issue in the case of Westhart v. Estate of Gagne, No. 558778 (Apr. 24, 2002) Superior Court, Judicial District of New London at New London, No. 558778 (Apr. 24, 2002) (Corradino, J.) 32 CLR 66. Judge Corradino wrote:
The difficulty with the situation at common law was that if death tolls the statute and it does not begin to run until a fiduciary is appointed, a prospective plaintiff could wait years to open an estate, thus avoiding any policy objectives sought to be achieved by our limitations statutes.
The legislature sought to address this problem in 1987 when it passed what are now §§ 45a-353 through 45a-383 of the Connecticut General Statutes entitled "Claims Against Decedent's Estates for Decedents Dying On or After October 1, 1987." It specifically addressed the tolling problem in subsection (c) of § 45a-375 where it says in relevant part:
No claim may be presented and no suit may be commenced against the fiduciary, the estate of the decedent, or any creditor or beneficiary of such estate but within (1) two years from the date of the decedent's death or (2) the date upon which the statute of limitations applicable to such a claim . . . would otherwise have expired, whichever shall first occur.
There is a subsection (a) to § 45a-375 which like the old § 42-205 was enacted out of considerations of fairness. It says a thirty-day extension is allowed within which to make a claim "if any person against whom a claim exists dies within thirty days prior to the expiration of the limitations statute. But subsection (a) does not conflict with subsection (c) or compromise the legislature's intent to address the common-law tolling problem. The two subsections must simply be read together. The thirty-day extension is only allowed within the context of the two-year limits set forth on subsection (c).
Here, the defendant died long before thirty days prior to the expiration of the limitations period so it is irrelevant to any consideration before the court.
Also the language of § 45a-375 in using the word "claim" is broad enough to encompass a tort claim such as made here. Subsection (d) of § 45a-353 says:
(d) Claim means all claims against a decedent (1) existing at the time of death or arising after the decedent's death including, but not limited to claims . . . founded in tort . . .
(The definition is explicitly referenced as applying to the use of the word `claim' in § 45a-375; the statute says for the purposes of sections . . . 45a-353 to 45a-390 the following terms shall have the following meanings . . ." and then defines claim.)
The point here is that the plaintiff had a tort claim arising on June 12, 1998. The applicable statute of limitations allowed suit to be brought as late as June 12, 2000. Notice of Death was served on the plaintiff on April 11, 2000. Under § 45a-375(c), the plaintiff had two months within which to create an estate and bring suit. Suit was not brought, however, until May 15, 2001, a day after an administratrix was appointed and well beyond the bounds of subsection (e) of § 45a-375. Therefore, the suit must be dismissed.
Plaintiff's counsel has cited two Superior Court cases taking a different view than this court in post-1987 death cases: Deangelis v. Winiarski, Superior Court, judicial district of New Britain, Docket No. 502458 (May 7, 2001, Graham, J.) ( 29 Conn. L. Rptr. 555); Marcejonis v. Torres, Superior Court, Judicial District of Middlesex at Middletown, No. CV-99-0090735-S (Apr. 17, 2002) (Shapiro, J.). "They both rely on pre-1987 case law and the applicability of 45a-375(c) was apparently not raised as an issue." Westhart v. Estate of Gagne, No. 558778 (Apr. 24, 2002) Superior Court, judicial district of New London at New London, No. 558778 (Apr. 24, 2002) (Corradino, J.) ( 32 Conn. L. Rptr. 66) n. 2.
In the present matter, the plaintiff had a tort claim arising on November 16, 2000. The applicable statute of limitations allowed suit to be brought within two years of that date. The decedent died on October 3, 2002. Under § 45a-375(c), the plaintiff had in excess of thirty days from the date of death to create an estate and bring suit. Suit was not brought, however, until April 17, 2003, fifteen days after the appointment of the plaintiff executrix. This was well beyond the bounds of § 45a-375(c).
Therefore, the plaintiff's motion to strike the defendant's First Special Defense, which claims the plaintiff's action is barred by the statute of limitations, is hereby denied.
The Court
By: Arnold, J.