Wanda Sanabria v. IV (2009)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (NO. 130)

The defendants, Duffield Ashmead, M.D., and the Hartford Orthopedic, Plastic and Hand Surgeons, Inc., move for summary judgment as to Counts One and Four of the second revised complaint and the defendant's second special defense.   The gravamen of this motion is that the plaintiff's action has not been filed in compliance with the applicable statute of limitations, and therefore the action is barred.

The plaintiff objects to this motion for summary judgment.   The gravamen of the plaintiff's objection is that this action has, in fact, been filed in a timely fashion as they placed the writ, summons and complaint in the hands of the marshal in a timely fashion.   The plaintiff alleges that this action is saved by the operation of General Statutes § 52-293a.

In support of the motion for summary judgment, the defendants note that the date the complained of medical treatment was provided is not in dispute and they attach the marshal's return of service that is on file with the court.   The plaintiff has filed the affidavits from Donna J. Thorpe, the office administrator of the Law Firm of Stephen M. Reck, LLC and an affidavit of the state marshal who served the initial writ, summons and complaint in this action.

Posture of the Case

The parties agree that on November 1, 2006, the plaintiff, Wanda Sanabria, was a patient of the defendants, Duffield Ashmead, M.D. and the Hartford Orthopaedic, Plastic and Hand Surgeons, Inc. The plaintiff alleges that on that date, the defendant performed a medical procedure upon the plaintiff which the plaintiff now claims was not done properly and is the basis for the claim of medical malpractice.

On October 23, 2008, the plaintiff filed a petition for extension of time of the statute of limitations pursuant to § 52-190a(b) of the General Statutes.   The effect of this petition for the extension of the statute of limitations was to extend the time for the filing of the malpractice action from November 1, 2008 until January 30, 2009.

A review of the court file reveals that the papers commencing this litigation were filed with the court on February 6, 2009.   These papers included the return of service of Joseph Antinerella, CT state marshal, Hartford County.   This return is dated February 2, 2009, and reads in pertinent part:

Then and by virtue hereof and by direction of the plaintiff's attorney, I left a verified true and attested copy of the original.   WRIT, SUMMONS, COMPLAINT, STATEMENT OF AMOUNT IN DEMAND, CERTIFICATE OF REASONABLE INQUIRY, EXHIBITS, PETITION FOR EXTENSION OF TIME OF THE STATUTE OF LIMITATIONS AND ORDER, with an in-the-hands of the within-named defendant DUFFIELD ASHMEAD, IV, M.D., in the Town of Hartford, County of Hartford.

And also, on the second day of February 2009, I left a verified true and attested copy of the original writ, summons, complaint, statement of amount in demand, certificate of reasonable inquiry, exhibits, petition for extension of time of the statute of limitations and order, at the usual place of abode of H. Kirk Watson, 291 Woodland Street, Agent for Service of the within-named defendant, HARTFORD ORTHOPAEDIC, PLASTIC AND HAND SURGEONS, INC., in the Town of SOUTH GLASTONBURY, County of Hartford.

The affidavits supplied by the plaintiff in opposition to this motion for summary judgment are not disputed by the defendants, but the legal effect of the affidavits are disputed.   In her affidavit, Ms. Thorpe states that as the office administrator of the Law Firm of Stephen M. Reck, LLC, that on January 27, 2009, “I mailed by priority mail a sufficient number of copies of the writ, summons and complaint to State Marshal Joseph Antinerella for service on the various defendants.   I called him by telephone to advise him that these papers were on their way to him, as is my custom.”   Ms. Thorpe further affies that “Marshal Antinerella called me on January 29th to acknowledge that he had received the papers and that he would call if he had any questions or problems.”

The affidavit filed by Joseph Antinerella, states:  “On January 27, 2009, I received a call from Donna Thorpe at the law firm of Stephen M. Reck, LLC, stating that she was mailing me complaints to be served in the matter of Sanabria v. Ashmead, et al.   These papers were in my hands by January 29, 2009, and I called Ms. Thorpe on that date to advise her that I had received them.   I served the defendants on Monday, February 2, 2009.   I inadvertently forgot to note on my marshal's return the date I received process in my hands.”

Discussion

The defendants' argue the court may not consider the affidavit filed by the court administrator nor may it consider the affidavit filed by the state marshal, but must, in effect, determine the timeliness of the filing of this lawsuit solely by virtue of the marshal's return that is on file with the court.   The defendants claim that the return on file with the court does not provide a foundation for the plaintiff to rely upon the saving grace of General Statutes § 52-593a, because in the return the state marshal does not state under oath the date when he received the process.   They assert defects in the return of service cannot be cured by the filing of an affidavit or amended return by the marshal.   See Castaneda v. New London County Mutual Ins. Co., 2004 WL 309061.

General Statutes § 52-593a is entitled “Right of Action Not Lost Where Process Served After Statutory Period.   When.” The text of the statute provides:

(a) Except in the case of an appeal from an administrative agency governed by § 4-183, a cause for 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 30 days of the delivery. (b) In any such case, the state marshal making service shall endorse under oath on such state marshal's return the date of the delivery of the process to state marshal for service in accordance with this section”

The defendants note that the plaintiff has not strictly complied with the provisions of § 52-593(a) because courts have held “in order to invoke [the provisions of § 52-593(a) ], the officer's return must contain his endorsement of the date upon which process was delivered to him for service.”  Kelly Kroen v. Dock Street Associates, 1993 WL 286708;  see also Cronin v. Minnefield, 2009 WL 415483;  Cazimovski v. Retro Clubs, Inc., 1996 WL 362263.

The defendants acknowledge that there is a split of authority amongst the lower courts with regard to this issue.   There have been a number of courts that have held that if the plaintiff provides satisfactory evidence that the writ, summons and complaint were delivered to the state marshal within the statute of limitations, that the plaintiff can avail themselves of the language of General Statutes § 52-593(a).   See, e.g. Abitz v. Fierer, 2008 WL 283700 (Conn.Super.), 44 Conn. Law Rptr. 820;  Fiori v. Schwartz, 2007 WL 4576712;  and Cartsounis v. Rothstein, 2003 WL 1477036.

This court believes that the better arguments support the denial of this motion for summary judgment and for the allowing of this litigation to be determined upon the merits of the claim.   The language of § 52-593a establishes the remedial purpose of this statute.   It states, “A cause or right of action shall not be lost because of the passage of time ․ if the process to be served is personally delivered to a state marshal authorized to serve process and that process is served as provided by law, within 30 days of the delivery.”   This remedial purpose would be frustrated if the defendants interpretation were adopted.   Under the defendant's reasoning a plaintiff who had done everything in his control-the delivery of the legal process in a timely manner to a state marshal-could lose his or her cause of action if the marshal failed to attest to this fact in his return.   The defendants embrace this draconian result and would further the principle by not allowing an amended return or affidavit to cure this facial defect.

In this case, the affidavits on file indicate that the plaintiff's representatives delivered the paperwork to commence this case to the state marshal on January 29, 2009, and that the marshal served the paperwork approximately four days later.   Under this set of facts, the plaintiff has taken the essential steps that were required to have her cause of action commenced in a timely fashion.   Once the state marshal receives this paperwork and serves the paperwork, as provided by law, the statutory language directs “the state marshal making the service shall endorse under oath on such state marshal's return the date of delivery of the process to such state marshal for service in accordance with this section.”   It is obvious that the marshal in question has not complied with this section of the General Statutes.   The return of process is not endorsed under oath or is there any indication in the return as to when the paperwork was delivered to the marshal.   The September 14, 2009 affidavit filed by Marshal Antinerella does state under oath the date that this paperwork or “process” was delivered to him.   The date of the delivery was within the time period for the filing of this action against the defendant Ashmead and Hartford Orthopaedic, Plastic and Hand Surgeons, Inc.

“Connecticut law ․ does not favor the termination of proceedings without a determination of the merits of the controversy where that can be brought about with due regard to necessary rules of procedure ․” Millbrook Owners Association, Inc. v. Hamilton Standard, 257 Conn. 1, 16 (2001).

In this case, the court finds that the plaintiff delivered the legal process to the marshal in a timely fashion, the marshal has attested that the process was in his hands on January 29, 2009, and that he served the process on the defendants four days later.   These findings support the invocation of Gen.Stat. 452-593a which allows the marshal thirty days from the delivery in order to effectuate timely service.

The defendants' motion for summary judgment on counts One and Four of the Second Revised Complaint and their Second Special Defense is denied.

The Court

Cosgrove, J.

Cosgrove, Emmet L., J.