Opinion
No. CV 04 4001359 S
July 26, 2005
MEMORANDUM OF DECISION ON THE MOTION FOR SUMMARY JUDGMENT FILED BY THE DEFENDANTS RICHARD M. KATZ AND CONNECTICUT RADIOLOGY ASSOCIATES, P.C.
DISCUSSION
This action was instituted by Kenneth Mickelson, individually and as administrator of the estate of Mary Mickelson, seeking damages for the injuries allegedly caused by the medical malpractice of the defendants Richard M. Katz and Connecticut Radiology Associates, P.C. Pending before the court is the motion for summary judgment filed by these defendants. The standards governing the court's consideration of a motion for summary judgment are well established and will not be repeated here. See Practice Book §§ 17-44 — 17-49; Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 252, 819 A.2d 773 (2003).
The first and third counts of the amended complaint are asserted by the estate against Richard Katz and Connecticut Radiology Associates, P.C. respectively. The second and fourth counts are asserted individually by Kenneth Mickelson against Richard Katz and Connecticut Radiology Associates, P.C., respectively, for loss of consortium.
In the motion for summary judgment, these defendants claim that they are entitled to summary judgment because this action was notified within the two-year limitation period of General Statutes § 52-555. In a decision issued from the bench, the court relied on the decision in Douchette v. Bouchard, 28 Conn.Supp. 460, 265 A.2d 68 (1970), and concluded that the plaintiff's postmortem claims are bared because they were not filed within the two-year limitation period of § 52-555. Thus, the court ruled that the defendants are entitled to judgment as a matter of law as to the plaintiffs' postmortem claims governed by § 52-555.
General Statutes § 52-555(a) provides: "In any action surviving to or brought by an executor or administrator for injuries resulting in death, whether instantaneous or (illegible text) executor or administrator may recover from the party legally at fault for such injuries just damages together with the cost of reasonably necessary medical, hospital and nursing services, and including funeral expenses, provided no action shall be brought to recover such damages and disbursements but within two years from the date of death, and except that no such action may be brought more than five years from the date of the act or omission complained of."
As the estate's claims are barred under the limitation period of § 52-555, the plaintiff Kenneth Michelson's claims for postmortem loss of consortium are similarly barred. General Statutes § 52-555c(a) provides that "[n]o action with respect to any clam or cause of action for loss of consortium shall be commenced except within the time within which an action may be commenced with respect to the death of the other spouse in relation to which the action of loss of consortium arises."
The court reserved decision as to any antemortem claims not governed by § 52-555. For the following reasons, the court denies the defendants' motion for summary judgment as to the plaintiffs' antemortem claims.
The plaintiffs argue that their antemortem claims are not governed by § 52-555. According to the plaintiffs, the antemortem claims are governed by the two-year statute of limitations of General Statutes § 52-584, and they further contend, that this two-year period is extended for one year as a result of the provisions of General Statutes § 52-594. The court concludes that the plaintiffs' positions are supported by the reasoning and holding of Douchette v. Bouchard, supra, 28 Conn.Sup. 460. The date of the alleged negligent act, October 31, 2001, would be the earliest possible date of discovery of the injury in this case. Service was effectively made within three years of this date, and therefore, pursuant to the provisions of § 52-584 and § 52-594, the action was instituted within the limitation period. In short, the plaintiffs' claims for antemortem claims are viable because they were asserted within the two-year statute of limitations of § 52-584 through the operation of the one-year extension provided by General Statutes § 52-594.
General Statutes § 52-584 provides: "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 § 52-594 provides: "If the time limited for the commencement of any personal action, which by law survives to the representatives of a deceased person, has not elapsed at the time of the person's death, one year from the date of death shall be allowed to his executor or administrator to institute an action therefor. In computing the times limited in this chapter, one year shall be excluded from the computation in actions covered by the provisions of this section."
During oral argument, the "effective" date of service was elucidated as follows. The act of negligence allegedly committed by the defendants occurred on October 31, 2001. Service was made on November 2, 2004. Although actual service was made beyond three years from the date of the alleged act of negligence, the affidavit of the marshal filed with the return of service indicates that the writ, summons and complaint were delivered to him on October 15, 2004, within applicable time period. Under these circumstances, through the operation of General Statutes § 51-593a, the limitation period was extended for thirty days to allow service to be made, and in fact, service was made in this case within this thirty-day period. Additionally, the plaintiff had requested and received an automatic, ninety-day extension of the limitation period under General Statutes § 52-190a(b). This ninety-day extension, which operates to extend both the two-year limitation period and the three-year repose period of § 52-584 also appears to extend the additional year provided by § 52-594. See Barrett v. Montesano, supra, 269 Conn. 787, 794-97, 849 A.2d 839 (2004).
During oral argument, the defendants also argued that the plaintiffs' amended complaint only states expressly that the cause of action is brought under § 52-555, and therefore, any claims for antemortem damages are foreclosed. This argument suggests that § 52-584 or § 52-594 should be pleaded in the complaint in order for the plaintiff to rely on them now in opposition to the defendants' motion for summary judgment. Although the allegations of the amended complaint could have been more artfully or accurately plead, under the circumstances presented, this pleading issue does not control the disposition of the motion for summary judgment.
Because § 52-555 provides the jurisdictional basis for the postmortem claims, this statute must be affirmatively pleaded in the complaint. See Practice Book § 10-3. Certainly, a plaintiff is not required to plead the statute of limitations, because this is a special defense which must be asserted by the defendant. See Practice Book § 10-50. Similarly, matters that avoid or extend the statute of limitations, such as § 52-594, are not required to be pleaded in the complaint, although they may be raised there, particularly when the facts of a statute of limitations defense are implicated by the complaint's allegations. Moreover, the rule of Practice Book § 10-3, requiring a statute to be identified in the complaint when a claim is grounded on the statute, is directory rather than mandatory. Spears v. Garcia, CT Page 11745 66 Conn.App. 669, 675-76, 785 A.2d 1181, cert. denied, 259 Conn. 903, 789 A.2d 991 (2001), on reconsideration, cert. granted on other grounds, 250 Conn. 915, 792 A.2d 852 (2002), aff'd., 263 Conn. 22, 818 A.2d 37 (2003); Caruso v. Milford, 75 Conn.App. 95, 101, 815 A.2d 167, cert. denied, 263 Conn. 907, 819 A.2d 838 (2003).
Additionally, and more important, on the basis of the allegations of the complaint, there can be no bona fide claim of surprise or prejudice on the part of the defendants relating to the plaintiffs' claim for antemortem damages. The complaint clearly states that as a result of the defendants,' negligence, the decedent suffered "severe, painful and permanent injury" and "great fear and anxiety and distress of mind." Such allegations express antemortem, as compared to postmortem injuries.
The court notes that the plaintiff, as the administrator of Mary Mickelson's estate, also argues that because § 52-594 applies to exclude one year from the computation of the two-year limitation period of § 52-584 for the institution of suit for antemortem claims, § 52-594 should also operate to exclude one year from the computation of the two-year limitation period of § 52-555 for the institution of suit for postmortem claims. The plaintiff reasons that this construction is necessary to "harmonize" these statutes, and that as a result of this construction, the plaintiff's postmortem claims are timely filed under § 52-555. The plaintiff's reasoning is wrong first because the language of § 52-594 indicates that this statute applies to an action that "has not elapsed at the time of the person's death," and not to an action for postmortem claims that arises only as a result of the person's death. Furthermore, as discussed above, Douchette v. Bouchard, 28 Conn.Supp. 460, 265 A.2d 68 (1970), provides persuasive analysis of this issue, and the plaintiff's reasoning is undermined by this decision. Section 52-555's limitation period for instituting suit is jurisdictional, must be strictly construed, and cannot be expanded through construction. See Ecker v. West Hartford, 205 Conn. 219, 231-33, 530 A.2d 1056 (1987). The court respectfully declines to follow any language in Slater v. Mount Sinai Hospital, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket Number CV 94 542007 S (June 11, 1997; Sullivan, J.), tending to support the plaintiff's position.
CONCLUSION
Therefore, for the foregoing reasons, the defendants' motion for summary judgment is granted as to the plaintiffs' postmortem claims based on General Statutes § 52-555. The defendants' motion for summary judgment is denied as to the plaintiffs' common-law, antemortem claims.
So ordered.
STEVENS, J.