Opinion
No. CV 05 4013792 S
December 11, 2006
MEMORANDUM OP DECISION
Before the court is the defendant's motion for summary judgment, on the ground that the plaintiff's claim is untimely under both General Statutes §§ 52-584 and 45a-375.
This single count action for negligence arises out of injuries allegedly sustained by the plaintiff, Catherine Conklin, in a motor vehicle collision with the defendant's decedent, Andrew Frank Depino. On July 11, 2005, the plaintiff delivered a writ, summons and complaint to a state marshal to be served on the defendant, the Estate of Andrew Frank Depino, and on August 5, 2005, this action was commenced by service of process.
The plaintiff alleges the following facts. On March 23, 2001, the defendant's decedent negligently drove though a red light, striking the plaintiff's vehicle in the intersection through which she was lawfully driving. As a result of the collision, the plaintiff sustained various injuries causing her pain and requiring medical care. In connection with those injuries, she claims money damages. The defendant's decedent died on March 14, 2003, nine days before the statute of limitations to bring a claim of negligence against him would have expired. In February 2004, his estate was opened as an intestate estate, and in March 2004, attorney Thomas Virgulto was appointed as his fiduciary. The plaintiff presented attorney Virgulto with written notification of her claim against the defendant's decedent on February 4, 2004, which Virgulto has never rejected. The defendant's decedent executed a will, however, which was submitted to probate on June 15, 2005, with attorney Thomas Virgulto appointed as fiduciary.
The same cause of action was commenced against the defendant's decedent directly by service of process on April 15, 2003; in that case, the defendant's motion to dismiss was granted because he was deceased when the writ, summons and complaint were served. See Conklin v. Depino, Superior Court, judicial district of New Haven, Docket No. CV 03 0476139 (September 22, 2003, Thomson, J.).
On March 9, 2006, the defendant filed a motion for summary judgment with a supporting memorandum of law, claiming the plaintiff did not file her claim within the applicable statute of limitations. On April 25, 2006, the plaintiff filed a memorandum in opposition. She appended several exhibits and affidavits, including a letter from the plaintiff's counsel to attorney Virgulto, apprising him of the claim, and an affidavit from attorney Virgulto, acknowledging presentation of the claim and attesting to his not having rejected it.
"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.) Old Farms Associates v. Commissioner of Revenue Services, 279 Conn. 465, 479, 903 A.2d 152 (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 limitations 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). Finally, "[i]n seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue." Zielinshi v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).
The defendant moves for summary judgment on the ground that the plaintiff has exceeded the two-year limitations period for negligence actions provided by General Statutes § 52-584. The defendant argues that since the alleged negligence occurred on March 23, 2001, and this action was not commenced until August 5, 2005, this action is untimely. The defendant further contends that the tolling period provided in General Statutes § 45a-375(a), on which the plaintiff relies, is unavailing in light of § 45a-375(c), which sets the time limitation for when an action can be brought against a decedent's estate.
The plaintiff counters that § 45a-375(a) operates to toll the limitations period, since the defendant died on March 14, 2003, within thirty days prior to the date the limitations period would have expired. According to the plaintiff, she then had thirty days from the appointment of the fiduciary to present a claim pursuant to General Statutes § 45a-358, which the plaintiff did on February 4, 2004, and then again on July 5, 2005, after the estate was admitted to probate and the fiduciary re-appointed. Since the fiduciary never rejected the claim in accordance with General Statutes § 45a-360, the plaintiff contends that the limitations period remained tolled, and the plaintiff's subsequent commencement of this action on August 5, 2005, was timely. Finally, the plaintiff argues that the fiduciary's course of conduct in not rejecting the claim constitutes waiver of the statute of limitations.
Section 45a-375 limits the time in which claims against decedent's estates may be presented to the fiduciary, as governed by § 45a-358 et seq., and brought in court. Research reveals that the appellate courts have never construed the statute, and there is some discrepancy in its interpretation among Superior Court decisions. Many have noted that § 45a-375 was passed to ameliorate the problem, under the common-law rule that statutes of limitations are tolled from the date of the prospective defendant's death until the appointment of the fiduciary, of claimants waiting many years to open estates and bring their actions. See Westhart v. Estate of Gagne, Superior Court, judicial district of New London, Docket No. CV 01 558778 (June 10, 2002, Corradino, J.) ( 32 Conn. L. Rptr. 66); Arbusto v. Perkins, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 03 0082016 (February 9, 2005, Schluger, J.) ( 38 Conn. L. Rptr. 665). Thus, the statute abrogates this common-law rule, and the limitations period is capped at two years following the decedent's death, regardless of when the fiduciary is appointed. While, as the plaintiff points out, some courts have held otherwise; e.g. Deangelis v. Winiarski, Superior Court, judicial district of New Britain, Docket No. CV 00 0502458 (May 9, 2001, Graham, J.) ( 29 Conn. L. Rptr. 555); Marcejonis v. Torres, Superior Court, judicial district of Middlesex, No. CV 99 0090735 (Apr. 17, 2002, Shapiro, J.); the court in Westhart v. Estate of Gagne, supra, 32 Conn. L. Rptr. 66 n. 2, noted that these two cases (and, impliedly, others before them) "rely on pre-1987 case law and the applicability of [§ ]45a-375(c) was apparently not raised as an issue." A substantial majority of recent cases comport with Westhart.
General Statutes § 45a-375 provides in relevant part: "(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 . . . would otherwise have expired, whichever shall first occur."
Nevertheless, even among the courts that accord with Westhart, none were presented with a situation, as in the present case, where the defendant's decedent died within thirty days of the expiration of the limitations period. As such, no court has yet considered the effect of § 45a-375(a) on any statute of limitations issue. Several have noted that "[t]here is a subsection (a) to § 45a-375 which like the old § 42-205 was enacted out of considerations of fairness . . . But [it] 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 [in] subsection (c). (Emphasis added.) Westhart v. Estate of Gagne, supra, 32 Conn. L. Rptr. 68. This suggests that, if a person against whom a claim exists dies within thirty days of the running of the relevant statute of limitations, the claimant's cause of action is tolled until a fiduciary is appointed, at which point she has thirty days to present their claim in compliance with § 45a-358 and then file suit pursuant to General Statutes § 45a-363, but in any event she must do both within two years of the date of the decedent's death.
E.g. Arbusto v. Perkins, supra, 38 Conn. L. Rptr. 665; Natanzon v. Sikora, Superior Court judicial district of New Britain, Docket No. CV 05 4004560 (April 5, 2006, Shapiro, J.) ( 41 Conn. L. Rptr. 210); Cloutier v. Houseworth, Superior Court, judicial district of New Haven, Docket No. CV 03 0476807 (September 7, 2004, Shapiro, J.) ( 37 Conn. L. Rptr. 854).
This appears to be the most logical reading of the statute. If, as the defendant in the present case suggests, subsection (c) were read as limiting the time within which to present or file a claim to the expiration date of the statute of limitations absolutely, subsection (a) would be rendered superfluous — even if, for example, the decedent died a full thirty days before the limitations period was to expire, and a fiduciary was appointed immediately on the date of death, the thirty-day period provided for in subsection (a) would already be operative under the regular statute of limitations.
This interpretation is supported by the court's discussion of § 45a-375(a) in Cloutier v. Houseworth, Superior Court, judicial district of New Haven, Docket No. CV 03 0476807 (September 7, 2004, Shapiro, J.) ( 37 Conn. L. Rptr. 854). Noting that "[§ 45a-375(a)] allows for the tolling of the statute of limitations in situations where the tortfeasor dies within [thirty] days of the expiration date for the applicable statute of limitations," the court rigidly adhered to the language of the statute, refusing to apply equitable tolling doctrines where the defendant died forty-three days before the running of the limitations period. A fair reading of the court's opinion is that, had the decedent died within the last thirty days of the limitations period, the plaintiff's suit, commenced several months beyond the two-year statute of limitations for negligence claims, would have been timely. Cloutier v. Houseworth, supra, 37 Conn. L. Rptr. 854. Thus, since in the present case the original limitations period would have run two years following the accident on March 23, 2003, and the defendant's decedent died on March 14, 2003, squarely within the thirty-day period provided for in § 45a-375(a), the limitations period was tolled until thirty days after the fiduciary was appointed.
Section 52-584 provides in relevant part: "No action to recover damages . . . caused by negligence . . . shall be brought but within two years from the date when the injury is first sustained or discovered . . ."
This ultimately proves unavailing to the plaintiff, however. Despite the plaintiff's assertion that, since the fiduciary never rejected the claim as provided in § 45a-360, the limitations period remains tolled, § 45a-375(c) demands a contrary result. As suggested by the court in Westhart v. Estate of Gagne, supra, 32 Conn. L. Rptr. 66, § 45a-375(c) limits the time period for the tolling to two years from the date of the decedent's death. In the present case, despite apparent attempts by the plaintiff to open the estate earlier, this suit was not commenced until August 5, 2005, over five months after the two-year limitations period beginning on the date of death, March 23, 2003, had run. Section 45a-375(c) has been read to be an uncompromising rule, meant to cure the problem of indefinite tolling that existed at common law. Even viewing the facts in a light most favorably to the plaintiff, her suit is outside of this provision, and is untimely.
Even if the commencement date were July 11, 2005, the date on which process for service was delivered to the State Marshal, as the plaintiff suggests is allowed by General Statutes § 52-593a, she would still have exceeded the two-year period of § 45a-375(c) by nearly four months.
A review of the legislative history supports the proposition that the two-year statute of limitations from the date of decedent's death was meant to be strictly construed. It reveals that the Claims Against Decedent's Estates Act was revised in 1989 and the limitations period of § 45a-375 was changed from two years from the appointment of the fiduciary to two years from the date of decedent's death, in response to a Supreme Court case, Tulsa Professional Collection Services v. Pope, 485 U.S. 478, 108 S.Ct. 1340, 99 L.Ed.2d 565 (1988). The court held that limitations periods operative on the appointment of the fiduciary were "state action" and therefore required actual notice to creditors; it noted, however, that some states' probate codes contained longer, "self-executing" statutes of limitations, triggered on the decedent's death, that set absolute upper limits as to when claims could be brought. Id., 487-88. Implying (although not expressly holding) that these may not be unconstitutional even absent required mailing notice, the Connecticut legislature in response amended § 45a-375 to fit this "self-executing" paradigm. The effect is to set an ultimate time limit that is not influenced by any state action; thus, the appointment of a fiduciary or presentment of claims to them is irrelevant to the limitations period.
Finally, the plaintiff, citing to Travelers Indemnity Co. v. Rubin, 209 Conn. 437, 445-46, 551 A.2d 1220 (1988), argues that the fiduciary has waived the statute of limitations defense by not contesting the plaintiff's claim under the doctrine that "a procedural statute of limitations, i.e. one that does not create the right of action itself but only contains a limitation as to time, can be waived." The court in that case, however, articulated that the statute of limitations "is deemed waived unless it is specially pleaded." (Emphasis added.) Id., 446. In the present case, the statute of limitations has been specially pleaded and fully briefed by the defendant. The plaintiff has proffered no law suggesting that a fiduciary's mere course of conduct can waive the statute of limitations. Contrary to the plaintiff's claims, whether the fiduciary accedes to the defense is inapposite; even if counsel is acting at the behest of the decedent's insurance company, it still represents the defendant and the issue was properly raised.
It is worth noting that in that case, the statute of limitations was only held waived because the defendant did not appear at trial and was defaulted; in the case the plaintiff cites for the proposition that § 45a-363 (and thus, by implication, § 45a-375) is waivable, Mooney v. Murphy, Superior Court, judicial district of Danbury, Docket No. CV 99 0335987 (March 14, 2001, Adams, J.) ( 29 Conn. L. Rptr. 81), the issue was only before the court on a motion to dismiss; the court denied the motion because it was not a jurisdictional issue, but did not hold that the statute of limitations issue had been waived, only that it must be specially pleaded.
The only relevant facts are the dates of the underlying accident, the decedent's death, and the commencement of this suit. These dates are not contested. The complaint and materials submitted by the plaintiff set forth these dates such that it is clear no material factual disputes exist, and the plaintiff has exceeded the statute of limitations set forth in § 45a-375(c). Accordingly, the defendant's motion for summary judgment is granted.