Opinion
CV156055678S
11-18-2015
Ann Marie Weyler v. Kalpana Parghi
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO DISMISS (#101)
Robin L. Wilson, J.
FACTS
On June 1, 2015, the plaintiff, Ann Marie Weyler, Administratrix of the Estate of Berton L. Francoeur, filed a one-count complaint against the defendant, Kalpana Parghi. The plaintiff alleges the following facts in her complaint. On February 9, 2006, the plaintiff's decedent, Francoeur, was admitted as a long-term inpatient to the Veterans' Administration West Haven Medical Center (VA) in West Haven, Connecticut. The decedent was a resident and patient at the VA until December 1, 2011. While there, his care was directed by the defendant, who is a resident and citizen of Suffolk County, New York, and is a non-employee physician authorized to treat patients as an independent contractor. The decedent was a ninety-year-old, double amputee suffering from dementia and other psychological issues related to age. The defendant was aware of the plaintiff's condition as she was the one who diagnosed his condition. Due to the plaintiff's increasing dementia, the VA medical staff placed an electronic device on the decedent's wheelchair to prevent him from leaving his floor, but the defendant removed the device on November 30, 2011.
On December 1, 2011, the decedent was allowed, due to orders given by the defendant, to wander in his wheelchair the property and grounds of the VA without any medical or other supervision. The decedent traveled, while strapped into his wheelchair, outside of the VA and out to the ambulance bay where he toppled over a curb and fell face first onto the pavement, sustaining severe acute head injuries and facial lacerations. As a result of the fall, the decedent died at Yale New Haven Hospital on December 22, 2011. The plaintiff further alleges that the decedent's death was due to the defendant's negligence and breach of the standard of care applicable to hospitals and geriatric care facilities by failing to monitor and supervise, issue appropriate medical orders, assess the decedent's mental and physical condition and capabilities, continue the protective orders, and warn the decedent of the risks of traveling outside of the VA in his condition. As a result, the plaintiff seeks money damages.
On June 29, 2015, the defendant filed a motion to dismiss the plaintiff's complaint on the grounds that the plaintiff's action was commenced beyond the statute of limitations and cannot be saved by General Statutes § 52-592, the accidental failure of suit statute. The defendant further alleges that the plaintiff failed to comply with the requirements for filing a complaint against a health care provider. In support of her motion, the defendant filed a memorandum of law. On September 30, 2015, the plaintiff filed an objection to the defendant's motion to dismiss arguing that a motion to dismiss is not the proper procedural challenge to the applicability of § 52-592. On October 2, 2015, the defendant filed a reply in further support of her motion to dismiss. Oral argument was heard on the motion at short calendar on October 5, 2015.
The defendant's motion to dismiss was filed within thirty days of the filing of her appearance and therefore timely filed in accordance with Practice Book § 10-30(b). The defendant filed her appearance on July 2, 2015, and the motion to dismiss on July 29, 2015.
General Statutes § 52-592(a) provides in relevant part: " If any action, commenced within the time limited by law, has failed one or more times 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 because the action has been dismissed for want of jurisdiction . . . or for any matter of form . . . the plaintiff . . . may commence a new action . . .for the same cause . . . within one year after the determination of the original action or after the reversal of the judgment."
DISCUSSION
" [A] motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013). " A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) MacDermid, Inc. v. Leonetti, 310 Conn. 616, 626, 79 A.3d 60 (2013). " A court deciding a motion to dismiss must determine not the merits of the claim or even its legal sufficiency, but rather, whether the claim is one that the court has jurisdiction to hear and decide." (Internal quotation marks omitted.) Hinde v. Specialized Education of Connecticut, Inc., 147 Conn.App. 730, 740-41, 84 A.3d 895 (2014). Practice Book § 10-30 provides in relevant part: " (a) A motion to dismiss shall be used to assert: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) insufficiency of process; and (4) insufficiency of service of process."
" [A] motion to dismiss is not the appropriate procedural means to challenge an action commenced pursuant to the accidental failure of suit statute [General Statutes § 52-592]. The appropriate challenge is by way of a properly pleaded special defense; see Practice Book § 10-50 . . . [A]lthough a motion to dismiss may not be the proper procedural vehicle for asserting that an action is not saved by . . . § 52-592, our Supreme Court has held that a trial court may properly consider a motion to dismiss in such circumstances when the plaintiff does not object to the use of the motion to dismiss." (Citation omitted; internal quotation marks omitted.) Worth v. Commissioner of Transportation, 135 Conn.App. 506, 515 n.16, 43 A.3d 199, cert. denied, 305 Conn. 919, 47 A.3d 389 (2012). " Nevertheless, in certain circumstances, the court is not required to determine 'the propriety of the defendant's [use of a] motion to dismiss' to raise the applicability of § 52-592 'in light of [the court's] resolution of the plaintiff's principal claim.'" Williams v. Hy's Livery Serv., Superior Court, judicial district of New Haven, Docket No. CV-95-5027762-S (October 16, 2012, Wilson, J.) (54 Conn. L. Rptr. 832, 834), quoting Tellar v. Abbott Laboratories, Inc., 114 Conn.App. 244, 245 n.1, 969 A.2d 210 (2009). After having considered the merits of the arguments in this case and the resolution thereof, the court will address the merits of the parties' defendant's motion to dismiss, including the applicability of the accidental failure of suit statute.
I
Connecticut General Statutes § 52-592In her memorandum of law in support of the motion to dismiss, the defendant argues that the original action filed on March 3, 2014, which this court, Wilson J., dismissed on May 28, 2015, cannot be saved by § 52-592. Specifically, the defendant provides two grounds as to why the plaintiff cannot satisfy the required elements of § 52-592. First, the defendant argues that the original action was never commenced within the time limited by law because it was never served upon the defendant at her primary residence nor served upon the Secretary of the State as is required by General Statutes § 52-59b for service upon an out of state defendant. Second, even if the original action was properly commenced, the plaintiff fails to provide any basis that her original action failed because of unavoidable accident, mistake, excusable conduct, or other reasonable cause as is required by the accidental failure of suit statute. The plaintiff counters this argument, asserting that the term " commencement" used within § 52-592 does not mean good, complete, and sufficient service of process and that the purpose of the statute is to save actions that have failed due to insufficient service of process. Further, the plaintiff argues that the original action was dismissed due to a good faith mistake or excusable neglect because service was made to the defendant's last known address available to plaintiff.
General Statutes § 52-59b(c) provides in relevant part: " Any nonresidential individual . . . over whom a court may exercise personal jurisdiction . . . may be served upon the Secretary of the State and shall have the same validity as if served upon the nonresident individual . . . The process shall be served by the officer to whom the same is directed upon the Secretary of the State by leaving with or at the office of the Secretary of the State . . . a true and attested copy thereof, and by sending to the defendant at the defendant's last-known address . . . a like true and attested copy with an endorsement thereon of the service upon the Secretary of the State."
Our Supreme Court has determined " that the term 'commenced, ' as used in § 52-592 to describe an initial action that 'has failed . . . to be tried on its merits because of insufficient service' . . . cannot be construed to mean good, complete and sufficient service of process . . ." (Citation omitted.) Dorry v. Garden, 313 Conn. 516, 528, 98 A.3d 55 (2014). Our Supreme Court, however, has also stated " that [§ 52-592] is not without limits. If it were, there would be no statutes of limitations. Even the saving statute does not guarantee that all plaintiffs have the opportunity to have their cases decided on the merits. It merely allows them a limited opportunity to correct certain defects in their actions within a certain period of time." (Internal quotation marks omitted.) Santorso v. Bristol Hosp., supra, 308 Conn. 355. In determining whether an action is commenced under § 52-592, several judges of the Superior Court have looked to the holdings of Davis v. Family Dollar Store, 78 Conn.App. 235, 826 A.2d 262 (2003), appeal dismissed, 271 Conn. 655, 656, 859 A.2d 25 (2004) and Rocco v. Garrison, 268 Conn. 541, 848 A.2d 352 (2004) for the proposition that improper or insufficient service is different from no service at all. See Bello v. Fair Haven Elderly Assocs. L.P., Superior Court, judicial district of New Haven, Docket No. CV-09-50276262-S (October 29, 2009, Wilson J.); Drwiega v. Aferzon, Superior Court, judicial district of New Britain, Docket No. CV-05-4002977-S (October 31, 2007, Shapiro, J.); Illescas v. Needham, Superior Court, judicial district of Hartford, Docket No. CV-04-4005457-S (August 10, 2006, Elgo, J.) (41 Conn. L. Rptr. 806).
In Davis v. Family Dollar Store, the plaintiff attempted to commence her action by delivering a writ of summons and complaint to a sheriff, but the sheriff never made the service on the defendant within the applicable statute of limitations. Davis, supra, 78 Conn.App. 236. The plaintiff filed another action pursuant to § 52-592, but our Appellate Court held that since process was not served upon the defendant nor returned to the court, the plaintiff never commenced the original action and thus, no action existed to be saved by § 52-592. Id., 237-40. In Rocco v. Garrison, the defendant received the summons and complaint filed in federal court four days prior to the expiration of the applicable statutes of limitations period. Rocco, supra, 268 Conn. 545-46. The defendant, however, did not sign and return the service form as requested, and the statute of limitations lapsed before formal service of process could be effected. Id., 546. Our Supreme Court held that the original action was " commenced" within the meaning of § 52-592 because the defendant received effective notice before expiration of the statute of limitations and, therefore, the plaintiff's claim was saved by § 52-592 despite insufficient service. Id., 550-51.
" When read together, the Davis and Rocco decisions make it clear that improper or insufficient service is different from no service at all . . . If the statutory time has lapsed after service was previously made, albeit improperly, an action has commenced for purposes of § 52-592. In contrast if service was not made by the statutory period, irrespective of whether service of process was timely delivered to a marshal or even attempted, the action has not commenced." (Citation omitted.) Illescas, supra, 41 Conn. L. Rptr. 808; see also Drwiega, supra, Docket No. CV-05-4002977-S, (no service or commencement and, thus, § 52-592 did not apply where original action was dismissed due to improperly serving agent of defendant as a corporation when service should have been made in hands of defendant or his usual place of abode); Battaglia v. Colonial Condo. Ass'n, Superior Court, judicial district of Stamford, Docket No. CV-97-0157598-S (March 24, 1998, Karazin, J.) (21 Conn. L. Rptr. 572) (no service was made where defendant's agent could not be found at address on record nor was it served on the Secretary of State and, thus, the action was not saved by § 52-592); Dolan v. Germond, Superior Court, judicial district of Fairfield, Docket No. CV-96-0330461-S (April 14, 1997, Thim, J.) (§ 52-592 does not apply where service of process timely delivered to sheriff, but served on defendant after statutory period expired), aff'd, 47 Conn.App. 924, 703 A.2d 1197. Accordingly, the court must determine whether the original action failed for improper service or due to no service at all.
" [S]ervice of process on a party in accordance with the statutory requirements is a prerequisite to a court's exercise of [personal] jurisdiction over that party." (Internal quotation marks omitted.) Bicio v. Brewer, 92 Conn.App. 158, 166, 884 A.2d 12 (2005). " Facts showing the service of process in time, form, and manner sufficient to satisfy the requirements of mandatory statutes . . . are essential to jurisdiction over the person." (Internal quotation marks omitted.) Matthews v. SBA, Inc., 149 Conn.App. 513, 530, 89 A.3d 938, cert. denied, 312 Conn. 917, 94 A.3d 642 (2014). " [W]hen a particular method of serving process is set forth by statute, that method must be followed . . . Unless service of process is made as the statute prescribes, the court to which it is returnable does not acquire jurisdiction." (Citation omitted; internal quotation marks omitted.) Commissioner of Transportation v. Kahn, 262 Conn. 257, 272, 811 A.2d 693 (2003).
Section 52-59b(c) provides the method for serving an out-of-state defendant and provides in relevant part: " [P]rocess shall be served by the officer to whom the same is directed upon the Secretary of the State by leaving with or at the office of the Secretary of the State . . . a true and attested copy thereof, and by sending to the defendant at the defendant's last-known address . . . a like true and attested copy with an endorsement thereon of the service upon the Secretary of the State." Several judges of the Superior Court have held that § 52-59b(c) requires service upon the Secretary of the State and failing to do so means no service at all, which warrants dismissal. See, e.g., Solon v. Slater, Superior Court, judicial district of Fairfield, Docket No. CV-14-6023538-S (May 12, 2015, Heller, J.); Jackson v. Truly Green Landscape & Maint., Inc., Superior Court, judicial district of Stamford, Docket No. CV-10-6006476-S (November 2, 2011, Jennings, J.T.R.) (52 Conn. L. Rptr. 732); Pasquariello Electric Corp. v. Nyberg, Superior Court, judicial district of New Haven, Docket No. CV-08-5024983-S (October 7, 2009, Zoarski, J.T.R.); Snow v. Overman, Superior Court, judicial district of Fairfield, Docket No. CV-07-5011602-S (October 1, 2008, Hiller, J.).
In the present case, the plaintiff attempted to serve the defendant in the original action by mailing the writ, summons, and complaint to 3227 Long Beach Road, Suite 3, Oceanside, New York on March 3, 2014. This address, however, was the address of a medical office that the defendant worked at for four months between July 2012 and November 2012, and, as such, no one at the medical office was authorized to accept service and the defendant did not receive service of process. Both parties dispute whether the defendant was properly served at her last known address, but what is undisputed is the fact that the plaintiff never served the Secretary of the State in the original action, which is required for service on out-of-state defendants per § 52-59b(c). By failing to serve the Secretary of the State, the plaintiff failed to meet the statutory requirements for serving out-of-state defendants. Further, the plaintiff presents arguments of a good faith mistake for mailing service of the writ and complaint to the wrong address of the defendant, but does not provide any good faith mistake, inadvertence, or excusable neglect as to why the plaintiff never served the Secretary of the State. It is clear from our case law that when a particular method of service is provided for by statute, failure to meet those statutory requirements results in no service at all and dismissal of the case. Thus, the plaintiff's original action was dismissed due to no service at all and not because of insufficient or improper service, and therefore § 52-592 does not apply to save the plaintiff's original action.
The plaintiff conceded at short calendar that service was never made on the Secretary of the State in the original action.
The court notes that both parties dispute whether the defendant received actual or effective notice of the action within the time period prescribed by law, however, it is not necessary for the court to address this argument as it has found that there was no service at all in the original action.
II
Connecticut General Statutes § 52-190aAthough the court has granted the defendant's motion to dismiss on other grounds, the court will briefly address the defendant's argument that the plaintiff failed to meet the requirements of filing a complaint against a healthcare provider. General Statutes § 52-190a(c) provides in relevant part: " The failure to obtain and file the written opinion [of a similar health care provider] required [for medical malpractice actions] shall be grounds for the dismissal of the action." General Statutes § 52-184c(c) provides in relevant part: " [A] 'similar health care provider' is one who: (1) Is trained and experienced in the same specialty; and (2) is certified by the appropriate American board in the same specialty . . ." " The only plausible application of the plain language of § § 52-190a and 52-184c requires disclosure of qualifications in the opinion letter." Lucisano v. Bisson, 132 Conn.App. 459, 466, 34 A.3d 983 (2011). The opinion letter should address the specific statutory qualifications and " represent that its author had been trained and experienced in [a] specialty or had been certified by [an] American board as a specialist." Bell v. Hospital of St. Raphael, 133 Conn.App. 548, 560, 36 A.3d 297 (2012). As the court, Lager, J., in Anderson v. Hosp. of St. Raphael, Superior Court, judicial district of New Haven, Docket No. CV-10-6014681-S (August 25, 2011) (52 Conn. L. Rptr. 486, 488) aptly held, the opinion letter should state whether or where the author is licensed, the author's training or experience in the relevant practice, the author's training and experience, and whether the author had been practicing for the relevant statutory five-year period. In the present case, the plaintiff's opinion letter does not provide the author's training or experience in the practice of internal medicine in fields similar to the defendant, it does not state whether the author is licensed, and it does not state whether the author had been practicing in the relevant field for at least five years. Thus, merely stating that the author is " Board Certified in Internal Medicine" is not sufficient to meet the requirements of § 52-190a.
Further, § 52-190a contains a " detailed basis" requirement and " a written opinion satisfies the 'detailed basis' requirement of § 52-190a(a) if it sets forth the basis of the similar health care provider's opinion that there appears to be evidence of medical negligence by express reference to what the defendant did or failed to do to breach the applicable standard of care. In other words, the written opinion must state the similar health care provider's opinion as to the applicable standard of care, the fact that the standard of care was breached, and the factual basis of the similar health care provider's conclusion concerning the breach of the standard of care." Wilcox v. Schwartz, 303 Conn. 630, 643, 37 A.3d 133 (2012). Here, the plaintiff's opinion letter does not state the applicable standard of care that the defendant breached, that the defendant breach that standard of care, or the factual basis for the similar health care provider's conclusion concerning the breach of the standard of care. Therefore, the plaintiff's opinion letter does not meet the " detailed basis" requirement pertaining to the applicable standard of care.
Accordingly, even if § 52-592 did apply to save the plaintiff's original action, the plaintiff's opinion letter of a similar health care provider, filed pursuant to General Statutes § 52-190a failed to properly identify the author's credentials, and failed to state the similar health care provider's opinion as to the applicable standard of care, the fact that the standard of care was breached, and the factual basis of the similar health care provider's conclusion concerning the breach of the standard of care. Accordingly, the plaintiff's complaint is dismissed.
CONCLUSION
For the foregoing reasons, the defendant's motion to dismiss is granted in its entirety.