Opinion
No. CV04 400 46 57 S
October 27, 2005
MEMORANDUM OF DECISION
Before the court is the defendant's motion for summary judgment. The plaintiff, Elijah Finley, Jr., alleges that he was injured on November 14, 2002 when his vehicle was struck in the rear by a vehicle driven and owned by Richard Brown. The plaintiff intended to sue Brown. On November 11, 2004, a writ was delivered to the marshal for service on Brown. On November 15, 2004 the marshal attempted service, but learned that Brown had died. Instead of serving the writ, the marshal returned it to the attorney for Finley. The attorney prepared a new writ on November 16, 2004, this time in the name of Marc Ginsberg, executor of the estate of Richard Brown. The new writ was given to the marshal for service on November 18, 2004. Service was made on the executor on November 22, 2004. This second complaint alleges that it is brought under the accidental failure of suit statute, General Statutes § 52-592, because the first action was avoided or defeated by the death of Brown. The defendant has answered, denying the allegations of the complaint and raising the statutes of limitation as a special defense.
On February 17, 2004 Marc Ginsberg was appointed executor of the estate of Richard Brown.
The defendant moves for summary judgment and claims that the action is barred by the statute of limitations. He has filed a memorandum of law, but no exhibits. The plaintiff argues that the accidental failure of suit statute saves this action from being untimely commenced. He has filed a memorandum of law in opposition, as well as the affidavit of Keith Rubenstein, his attorney. The plaintiff has also filed the original, unserved complaint and correspondence between Rubenstein and the insurer for Brown.
General Statutes § 52-584 provides, in relevant part: "No action to recover damages for injury to the person, or to real or personal property, caused by negligence . . . 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 of omission complained of . . ."
General Statutes § 52-592(a) provides, in relevant part: "If any action, commenced within the time limited by law, has failed one or more tines to be tried on its merits because of insufficient service or return of the writ due to unavoidable accident or the default or neglect of the officer to whom it was committed . . . or the action has been otherwise avoided or defeated by the death of a party or 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 . . ."
"The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Citation omitted; internal quotation marks omitted.) Lombardo's Ravioli Kitchen, Inc. v. Ryan, 268 Conn. 222, 237, 842 A.2d 1089 CT Page 13355-au (2004). "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.) Id.
"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 material facts are not in dispute. This action was filed on December 21, 2004 and the defendant was served with process on November 22, 2004. Although on November 11, 2004 the marshal was given the original writ to be served on Brown, he was not given the operative writ to serve on the defendant, the executor of Brown's estate, until November 18, 2004. Although the savings provisions of General Statutes § 52-593a would ordinarily extend the limitations period if the writ was delivered to the marshal within the limitations period, the operative writ was not delivered to the marshal until after that time. Unless the action is saved in some manner, it is, therefore, untimely because the defendant was served more than two years after the November 14, 2002 date of injury.
General Statutes § 52-593a(a) provides, in relevant part, that "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."
The plaintiff relies almost entirely on Contadini v. DeVito, 71 Conn.App. 697, 803 A.2d 423, cert. denied, 262 Conn. 918, 812 A.2d 862 (2002). The defendant relies almost entirely on Davis v. Family Dollar Store, 78 Conn.App. 235, 826 A.2d 262, cert. granted, 266 Conn. 912, 832 A.2d 69 (2003), appeal dismissed, 271 Conn. 655, 859 A.2d 25 (2004).
In Contadini v. DeVito, supra, 71 Conn.App. 697, the marshal made abode service on the defendant not knowing that the defendant had already died. The plaintiff became aware of the death as a result of the defendant's motion to dismiss, which ultimately was granted. The plaintiff then refiled the complaint, after the limitations period had passed, under the accidental failure of suit statute, naming the executor as the defendant. In stressing that the accidental failure of suit statute is remedial in nature, the court relied on Isaac v. Mount Sinai Hospital, 210 Conn. 721, 557 A.2d 116 (1989), to allow the second suit. The court focused on the similarity of identity between the defendants in both actions and the fact that the allegations in both actions were CT Page 13355-av identical. Contadini v. DeVito, supra, 701-02. The court held that "the first action, which was commenced within the statutory time period, legally existed when it was brought, despite the fact that the defendant named in that action had died prior to the commencement of the action." Id., 702. Contadini is distinguishable from this case in that the attorney did not learn of the death of the defendant until after service of the writ, so the original writ was, in fact, served.
In Davis v. Family Dollar Store, supra, 78 Conn.App. 235, the marshal was timely given a writ to serve but never made service. The writ was returned to the plaintiff by the marshal almost six months later. Service was then made almost seven months later, long after the limitations period passed. The plaintiff argued that the accidental failure of suit statute "should apply in cases such as the present action in which the plaintiff delivered the complaint in a timely manner to a sheriff and, due to the sheriff's accident, default or negligence, the complaint was not served." Id., 238.
The decision does not explain why service was not made.
The decision does not explain whether the original writ was served or a different writ.
The court disagreed, holding that "[t]he language of § 52-592 requires a plaintiff to have commenced an original action before the statute can be applied to save a subsequent action." (Emphasis in original) Id., 239-40. "Section 52-592 requires that the initial suit be commenced within the time limited by law . . . [A]n action is commenced not when the writ is returned but when it is served upon the defendant." (Internal quotation marks omitted.) Id., 240-41. The court held that the plaintiff had not "satisf[ied] all of the criteria in § 52-592 . . . The plaintiff . . . [had] not fulfilled the requirements of § 52-592. The original action was not commenced, resulting in an unseasonable suit." (Citation omitted; internal quotation marks omitted.) Id., 242.
Therefore, under the holding in Davis v. Family Dollar Store, supra, 78 Conn.App. 235, the accidental failure of suit statute would not save this action because the original action was not commenced. The original writ was never served so there was no original action to be saved by the statute. The holding in Davis, however, is also distinguishable from this case because in Davis the original writ was given to the marshal within the limitations period but not returned unserved until almost six months later and not re-served until almost seven months after that time. In this case, the original writ was given to the marshal within the limitations period and returned unserved four days later after it was learned that the defendant had died. A new writ was prepared one day later and a few days later it was served on the defendant. Service of the new writ was made eleven days after the original writ was delivered to the marshal. The new writ was identical to the first other than the substitution of the executor for the defendant. CT Page 13355-aw
Language was also added attempting to bring the claim under the accidental failure of suit statute.
A subsequent Supreme Court case, Rocco v. Garrison, 268 Conn. 541, 848 A.2d 352 (2004), discussed the meaning of "commenced" as used in § 52-592. "If the savings statute requires effective commencement of the original action, and commencement requires valid service of process . . . then any failure of service of process would require us to conclude that no action had been commenced and that the statute does not apply. This would render superfluous one of the principal purposes of the savings statute, namely, to save those actions that have failed due to insufficient service of process. To accept the view that improper or insufficient service defeats such an action would undermine the. statute's clear and unambiguous meaning and preclude the filing of a second action. The court pointed out that "commencement" of an action for statute of limitation purposes is not necessarily the same thing as "commencement" of an action for the purposes of the savings statute. Rocco v. Garrison, supra, 552-53.
The court finds that under Rocco, Finley was not required to effect "good, complete, and sufficient service of process" on Brown to commence an action for the purposes of § 52-592. Finley delivered the writ and summons to the marshal, on November 11, 2004, before the statute of limitations expired. The marshal then attempted service on Brown but learned of Brown's death and returned the writ and summons unserved to Finley's attorney. Since Brown was dead at the time of service, sufficient service on Brown was an impossibility. Therefore, the first action failed to be tried on its merits because of the impossibility of service. Section 52-592(a) permits Finley to file a second action within one year. Finley immediately served Ginsberg with the summons and complaint. This service was made eleven days after the first service of process failed and was within the year permitted by § 52-592(a).
The service of process on Ginsberg came within the thirty-day period provided by § 52-593a.
For the foregoing reasons, the court denies defendant Ginsberg's motion for summary judgment because the instant action is saved by the accidental failure of suit statute § 52-592.