Opinion
No. FST CV 06 5002447 S
March 10, 2010
MEMORANDUM OF DECISION MOTION FOR JUDGMENT RE STATUTE OF LIMITATIONS
BACKGROUND
On September 26, 2004, the plaintiff, Roulio Odena, was a passenger in a taxi in the City of Norwalk that was struck by a motor vehicle. The Norwalk police responded to the accident and completed a report that stated: "Oper. #1 continued east on Orchard St., and abandoned the vehicle at the side entrance driveway of 467 West Ave. Oper. #1 was described as an H/M wearing a long un-tucked shirt." (Defendant's Exh. L.) The police report also indicates that as to the operator of vehicle #1, it is under investigation. The police report identifies the owner of the vehicle as the defendant, Elrac, Inc., a company in the business of leasing cars.
The plaintiff, Roulio Odena filed a complaint dated September 22, 2006 naming as the sole defendant, Elrac, Inc. On September 22, 2006, the plaintiff placed the complaint in the hands of the marshal for service upon the defendant. Service was made on Elrac, Inc., ("Elrac") on September 27, 2006 in accordance with General Statutes § 52-593a. The complaint was returned to the court on October 5, 2006.
On December 4, 2006 the plaintiff filed a Motion to Cite in Party Defendant, naming Roger Rosenfeld and New York Claim Services. The plaintiff filed a Revised Motion to Cite in Party Defendant on January 30, 2007. The court, Reynolds, J. granted the motion on February 20, 2007. The plaintiff alleged in the motion that the defendant Roger Rosenfeld (Rosenfeld) was the lessor of the car owned by Elrac and was responsible for the accident. Rosenfeld filed an answer to the complaint that includes a special defense alleging that the action as to him is barred by the two-year statute of limitations.
The court granted Elrac's motion to dismiss on April 2, 2007. Since the filing of the amended complaint dated January 29, 2007, the plaintiff has filed additional motions to cite in party defendants naming New Hampshire Insurance Company and Metropolitan Property and Casualty Insurance Company. There have been a number of motions for judgment filed involving the various defendants.
The remaining parties, Roger Rosenfeld and Roulio Odena, agreed to have a hearing before the court on the merits of the defendant's, Rosenfeld's, special defense that the action is barred by the statute of limitations. On March 9, 2010 the court conducted a hearing. At the conclusion of the hearing the court permitted the submission of memorandum addressing the issue before the court. Memoranda were submitted on March 10, 2010.
The court makes the following findings in relation to the claims by the parties. At the time of the accident, the police were unable to identify the operator of the motor vehicle that struck the taxi. The operator left the car and fled on foot. The plaintiff consulted with attorneys in the law firm of Corsello and Cohen on or about October 2004. At that time, there were contacts made with the police department in Norwalk as well as a claim representative for Elrac. The file notes of the attorney originally involved in the matter, Attorney Randy Cohen, show at least ten various noted attempts to obtain the information about the operator. There is correspondence to the insurance adjuster and the police officer responsible for the investigation. Some of these contacts were efforts to obtain the name of the operator and to put Elrac on notice of the accident. The notes of the law firm indicate that the secretarial staff as well as Attorney Randy Cohen attempted to obtain specific information regarding the identity of the operator of the motor vehicle. (Defendant's Exhs. E, F, G, H, I, and J.) The testimony of Attorney Keyes included his knowledge of Attorney Cohen and the fact that she does business by telephone calls that may not be specifically included in the case file. At one point prior to September 28, 2006 Elrac provided to counsel for the plaintiff a copy of a lease agreement with all pertinent information redacted other than a name of the lessee, Roger Rosenfeld. (Plaintiff's Exh. 2.) Counsel for the plaintiff sent letters dated October 28, 2004, March 20, 2006 and May 12, 2006 requesting information and investigation related to the operator/lessee of the motor vehicle. (Defendant's Exhs. B, C, and J.) The response by Elrac was a December 19, 2005 letter in which the claim representative provides no information except that the car was operated by an unauthorized driver and thus they are denying all liability. (Defendant's Exh. D.)
On September 28, 2006, two days after the passage of the two-year statute of limitations period, counsel provided to Attorney George Kimmel a copy of the unredacted lease agreement. This was the first time all parties had direct identifying information for Roger Rosenfeld.
Counsel for the driver of the taxi cab was Attorney George Kimmel. He was also attempting to obtain information regarding the driver. In accordance with the testimony of Attorney Keyes, both Attorney Kimmel and Attorney Cohen had agreed to an exchange of information concerning the identity of the operator/lessee.
DISCUSSION
The thrust of the action now before the court is whether the plaintiff's action is barred by the statute of limitations. The defendant, Roger Rosenfeld, asserts in his special defense that the plaintiff has failed to file the action within the two years permitted by General Statutes § 52-584. The plaintiff contends that because of the lack of identity of the operator, the plaintiff has three years to file the complaint. The parties do not disagree that the action was filed within three years of the date of the accident. Although the test of the law in regard to which time period applies is clear, it is not the law that the parties dispute but it is the application of the facts in this action to the law as set forth by Tarnowsky v. Socci, 271 Conn. 284, 856 A.2d 408 (2004).
"[A] summary disposition . . . should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party." (Citations omitted; internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815 830 A.2d 752 (2003). The burden is on the moving party to demonstrate an absence of any triable issue of material fact and "[t]o satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . ." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318, 901 A.2d 1207 (2006).
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."
The question before this court is whether there were reasonable efforts made by the plaintiff to determine the identity of the individuals who would be viable defendant(s). In Tarnowsky v. Socci, supra, the Supreme Court established the test for a determination as to whether the statutory time for the filing the complaint would extend to three years in an action where the tortfeasor is not known. The court stated that "the rule we adopt in this case applies only when the plaintiff did not know, and reasonably could not have known, the identity of the tortfeasor." Tarnowsky v. Socci, supra at 295. The factual scenario of Tarnowsky differs from the situation now before the court. In Tarnowsky, the plaintiff had no information that would lead her to believe that there was a separate contractor responsible for the removal of snow on the sidewalk. As a result, the plaintiff was not aware until the completion of formal discovery that there was a contractor who removed the snow. The court in Tarnowsky focused on whether the plaintiff knew or should have been able to discover the identity of the tortfeasor. In the instant matter, counsel for the plaintiff was provided a name for the lessee of the car, Roger Rosenfeld. The defendant argues in his March 10, 2010 memorandum that this disclosure of a name was, in and of itself, enough for the plaintiff to commence litigation. The mere submission of a name however, without sufficient information to enable the plaintiff to make an educated decision that there has been a breach of duty and a causal connection between that individual's breach of duty and the resulting harm is tantamount to having no information. Additionally, the disclosure or identity of a name without a restriction to a location other than the Connecticut, New York area would require that counsel undertake a very long and protracted and possibly expensive investigation to locate a "Roger Rosenfeld" who may or may not be the operator or tortfeasor in this incident. The plaintiff's memorandum correctly points out that there is a difference in address in the instant case with Roger Rosenfeld. The defendant also argues that the filing of the action at an earlier time would have allowed time for discovery and filing before the two-year statute. While this may appear to be a solution, the court is not obliged to review every possible way that the plaintiff could have discovered the identity of defendants, that is not the standard. The defendant is asking the court to second guess based on hindsight. However, following the defendant's argument, demonstrates that even filing well before the two-year period may not produce the result of locating or discovering the unknown defendant prior to the statutory two years. In the consolidated Bastian case, counsel filed the complaint in May 2006 but the claim representative did not produce the appropriate identifying information until two days after the two-year statute.
The Practice Book § 4-2 states in relevant part: "The signing of any pleading, motion, objection or request shall constitute a certificate that the signer has read such document, that to the best of the signer's knowledge, information and belief there is good ground to support it . . ."
In determining the reasonableness of the work and efforts by the plaintiff, the law does not require that the court be guided by the "fact that counsel arguably could have inquired more deeply into certain areas, or failed to inquire at all into areas of claimed importance" to determine if counsel was deficient in performing tasks necessary for representation. Velasco v. Commissioner of Correction, 119 Conn.App. 164, (2010). Every attorney could have a different perspective as to what should be done to identify a potential defendant but there are no hard and fast rules. The test of reasonableness is an objective standard. Here, the court recognizes that counsel for the plaintiff could have engaged in other areas in an attempt to locate the driver but it was quite obvious that the insurance carrier was doing all it possible could to prevent this. The letter of the claim representative on December 19, 2005 which provides very little information and appears to indicate it was not Roger Rosenfeld only creates other questions of liability and uninsured motorist claims. The correspondence creates doubt as to who was the operator or tortfeasor. (Defendant's Exh. D.) The plaintiff argues in his March 10, 2010 memorandum that this letter led to the possible belief that "perhaps the vehicle had been stolen. At that point, the plaintiff was viewing this matter as an uninsured motorist case."
While the court recognizes that the facts provided during the hearing are very close as to the measure of reasonableness, it cannot find that the actions to determine the identity for purposes of bringing an action were such that they did not satisfy the reasonableness standard. The defendants have not satisfied the burden of proof by to a fair preponderance of the evidence that the plaintiff's actions were unreasonable and do not satisfy the test of Tarnowsky. The plaintiff's attempts to determine the "unknown" operator or determine if there should be other defendants as a result of the unauthorized operator leans ever so slightly into the realm of reasonable.
CONCLUSION
Based upon the above, the court Denies the defendant's motion for judgment.