Anthony J. Pellecchia, Administrator v. The Connecticut Light and Power Company et al. (2010)

MEMORANDUM OF DECISION

This matter is before the court concerning the defendants Connecticut Light and Power Company (CL & P), Northeast Utilities (NU), and Northeast Utilities Service Company's (NUSC) (collectively “CL & P defendants”) motion to stay proceedings (# 117).   The plaintiff, Anthony J. Pellecchia, Administrator, filed objections, which were followed by a reply and a sur-reply, which the court has considered.   After considering the parties' arguments, the court issues this memorandum of decision.¹

I

Procedural Background

The court previously set forth the procedural history of this matter in several other decisions in the 2008 action, including those dated May 13, 2009 (# 242), September 30, 2009 (# 301), October 28, 2009 (# 314) (issued in both actions), and December 17, 2009 (# 333).   Rather than completely repeat the procedural history here, reference may be made to those decisions.   The plaintiff commenced the 2008 action with the service of his complaint, dated May 30, 2008.   In that complaint, the plaintiff, as administrator of the estate of Anthony E. Pellecchia (decedent), seeks to recover damages, as the result of a July 2006 incident in which the decedent allegedly suffered serious personal injuries, from which he died, as a result of a motorcycle which he was operating coming into contact with an energized electrical line on or near the roadway.

In the 2008 action, the court issued a memorandum of decision on May 13, 2009 (# 242), granting a nonsuit as to the claims against the CL & P defendants, as a result of the plaintiff's failure to revise his complaint as requested, as required by the Practice Book, and as ordered by the court.   On September 30, 2009, by memorandum of decision (# 301), the court denied the plaintiff's motion to open the nonsuit, from which the plaintiff has appealed to the Appellate Court.

In its December 17, 2009 memorandum of decision (# 333) in the 2008 action, the court granted the defendants Town of Killingly, Anthony Shippee, and David Sabourin's (Town defendants) motion for nonsuit as to the plaintiff's claims against them.   This nonsuit also resulted from the plaintiff's failure to revise his complaint as requested, as required by the Practice Book, and as ordered by the court.   The plaintiff has appealed that decision also to the Appellate Court.

The 2009 action was filed in court on August 10, 2009.   Therein, the complaint was filed against the CL & P defendants, seeking damages arising from the same incident alleged in the first action.   As discussed below, the plaintiff acknowledges that the 2009 action is premised on the accidental failure of suit statute, General Statutes § 52-592.²

The court ordered the two actions to be consolidated in its October 28, 2009 memorandum of decision, and jury selection is scheduled to commence on November 15, 2010.

II

Discussion

“In the absence of a statutory mandate, the granting of an application or a motion for a stay of an action or proceeding is addressed to the discretion of the trial court ․ [T]he power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants.   How this can best be done calls for the exercise of judgment, which must weigh competing interests and maintain an even balance.”  (Citation omitted;  internal quotation marks omitted.)  Lee v. Harlow, Adams And Friedman, P.C., 116 Conn.App. 289, 311-12, 975 A.2d 715 (2009).³

“A stay leaves the court in a position to monitor the progress in the parallel litigation, and to reassert its jurisdiction over the parties' dispute if the interests of justice so dictate or require.   It is abundantly clear that allowing parallel actions to proceed will require needless additional expenditures of time and resources of the litigants, counsel and the courts, will not further or promote judicial economy, and, may tend to encourage forum shopping and condone procedural gamesmanship at the expense of the interest of justice.”   IDV North America, Inc. v. Saronno, S.p.A., Superior Court, judicial district of Hartford at Hartford, Docket No. CV-99-058059 (September 9, 1999, Teller, J.).

CL & P contends that both actions should be stayed in the interest of judicial economy, based on the following:  (1) in order to avoid having to re-try the 2008 action in the event this court's decisions as to the nonsuits are reversed on appeal;  (2) the CL & P defendants and the court should not have to devote time and resources addressing the 2009 action, since, in the event of reversal, the 2009 action, which is based on the accidental failure of suit statute, would not be able to be maintained;  and (3) the court should avoid rendering a potential decision on summary judgment in the 2009 action, concerning the applicability of the accidental failure of suit statute, which could be inconsistent with the appellate decision.   They also contend that the plaintiff would not be prejudiced by a stay since he has demonstrated little interest in an expeditious resolution of the 2008 action.

In his amended objection to the motion for stay in the 2009 action (# 124), page 3, the plaintiff states that the complaint in the 2009 action “was filed pursuant to Conn. Gen.Stat. § 52-592.”  “When a suit has been started seasonably, the statute extends the Statute of Limitations for a period of one year after the determination of the original action.”  Ross Realty Corp. v. Surkis, 163 Conn. 388, 393, 311 A.2d 74 (1972).

The plaintiff argues that he and the other defendants,⁴ as opposed to the CL & P defendants, will be prejudiced by a stay, through delay of a trial on the merits.   He also asserts that if no stay is issued, the cases will be less complex, allowing transfer to the regular docket, providing a benefit to the court and the public by reducing the complex litigation docket and increasing the availability of the complex litigation docket to adjudicate other cases.   In addition, he contends that since the Town and QVEC were brought into the 2009 action, it is ripe for prosecution and the 2009 action is not bogged down or hindered by the problems that plagued the 2008 action.

The court has considered and balanced the various reasons for and against granting a stay in this matter.   Clearly, judicial economy is promoted “by minimizing repetitive litigation.”  (Internal quotation marks omitted.)   Rosenfield v. Cymbala, 43 Conn.App. 83, 87-88, 681 A.2d 999 (1996).   Since they were only recently filed, it is evident that the plaintiff's appeals in the 2008 action as to the CL & P defendants and as to the Town defendants will not be resolved by when jury selection is scheduled, November 15, 2010, which is less than ten months from now.   The only remaining defendant against whom the plaintiff has not been nonsuited in the 2008 action is QVEC.

Judicial economy would be served by staying these matters until the outcome of the plaintiff's appeals.   Without an appellate decision, the plaintiff's claims in the 2008 action against the CL & P defendants and the Town defendants will not be litigated at trial.   If the court's decisions, as to reopening the nonsuits concerning the plaintiff's claims against the CL & P defendants, and as to granting the nonsuits as to the plaintiff's claims against the Town defendants, are reversed, those claims would have to be re-tried.   Having two trials as to the same incident should be avoided, so as to prevent needless expenditure of time and resources.   The other defendants in the 2008 action have recognized that they will not be prejudiced by a stay.   QVEC filed a response, in which it agreed to a stay.   The Town defendants, who had the opportunity to oppose staying these matters pending appeal, have not opposed the CL & P defendants' motions for stays.

The pendency of the 2009 action, which is premised on § 52-592, does not eliminate this risk of having two trials.   The CL & P defendants have put the other parties on notice that they intend to seek summary judgment in that action, challenging the availability of the accidental failure of suit statute, on the basis that the adjudication in their favor on the claims against them in the 2008 action resulted from a “[d]isciplinary dismissal,” which was not “a matter of form.”  (Internal quotation marks omitted.)  Ruddock v. Burrowes, 243 Conn. 569, 576, 577, 706 A.2d 967 (1998).   A plaintiff has the “burden of establishing the right to avail himself or herself of the statute ․” Id., 577.

Litigating that issue while the appeals are pending clearly creates the risk of inconsistent adjudications.   If this court's decisions are reversed, thereby reinstating the plaintiff's claims in the 2008 action against the CL & P defendants and the Town defendants, the 2009 action could not be maintained against them, since, for the purposes of the accidental failure of suit statute, the prior action as to them will not have “failed.”   See § 52-592(a).   Conflicting decisions, which create “a confused and unsettled state of the law,” Kelly, Administrator v. New Haven Steamboat Co., 74 Conn. 343, 346, 50 A. 871 (1902), should be avoided, if possible.

In view of such a prospect, neither the parties nor the court should have to devote time and resources to litigation of the 2009 action while the appeals are pending.   A stay is appropriate to allow these actions to proceed together in an efficient and organized way, avoiding potentially inconsistent decisions.

The above-stated considerations outweigh the delay that is inherent in a stay.   To the extent that the plaintiff is prejudiced by such delay, it stems from his own conduct, which has delayed the orderly progress of this litigation, as outlined in detail in the above-cited decisions of the court.

The court is unpersuaded that these matters will become less complex, or that the cases should be transferred to the regular docket, if no stay is issued.   The extensive decisional history of these cases, the first of which was commenced only in 2008, shows this contention to be unfounded.   In ordering a stay, judicial economy will be served, which is in the public's interest.⁵

CONCLUSION

For the foregoing reasons, the motions for stays of proceedings in the 2008 action and the 2009 action are granted, pending the outcomes of the plaintiff's appeals.   It is so ordered.

BY THE COURT

ROBERT B. SHAPIRO

JUDGE OF THE SUPERIOR COURT

FOOTNOTES

FN1. This decision also addresses a corresponding motion to stay proceedings, which was filed in an earlier action, Anthony J. Pellecchia, Admin., v. The Connecticut Light and Power Company, Docket No. HHD X04 CV-08-6003273 S, with which this action has been consolidated for discovery and trial purposes.   The court refers below to the initial action as the “2008 action” and to this action as the “2009 action.”.  FN1. This decision also addresses a corresponding motion to stay proceedings, which was filed in an earlier action, Anthony J. Pellecchia, Admin., v. The Connecticut Light and Power Company, Docket No. HHD X04 CV-08-6003273 S, with which this action has been consolidated for discovery and trial purposes.   The court refers below to the initial action as the “2008 action” and to this action as the “2009 action.”

FN2. Section 52-592(a) provides:  “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 the action has been otherwise avoided or defeated by the death of a party or for any matter of form;  or if, in any such action after a verdict for the plaintiff, the judgment has been set aside, or if a judgment of nonsuit has been rendered or a judgment for the plaintiff reversed, the plaintiff, or, if the plaintiff is dead and the action by law survives, his executor or administrator, may commence a new action, except as provided in subsection (b) of this section, for the same cause at any time within one year after the determination of the original action or after the reversal of the judgment.”.  FN2. Section 52-592(a) provides:  “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 the action has been otherwise avoided or defeated by the death of a party or for any matter of form;  or if, in any such action after a verdict for the plaintiff, the judgment has been set aside, or if a judgment of nonsuit has been rendered or a judgment for the plaintiff reversed, the plaintiff, or, if the plaintiff is dead and the action by law survives, his executor or administrator, may commence a new action, except as provided in subsection (b) of this section, for the same cause at any time within one year after the determination of the original action or after the reversal of the judgment.”

FN3. In the context of parallel civil and criminal proceedings, a court may stay a civil action in its entirety in the interests of justice.   See Tyler v. Shenkman-Tyler, 115 Conn.App. 521, 528, 973 A.2d 163, cert. denied, 293 Conn. 920, 979 A.2d 493 (2009).   There, the court noted factors which “can be helpful,” id., 115 Conn.App. 530, in deciding whether to stay a civil proceeding.   These include:  “[1] the interests of the plaintiff in an expeditious resolution and the prejudice to the plaintiff in not proceeding;  [2] the interests of and burdens on the defendants;  [3] the convenience to the court in the management of its docket and in the efficient use of judicial resources;  [4] the interests of other persons not parties to the civil litigation;  and [5] the interests of the public in the pending civil and criminal actions.”   (Internal quotation marks omitted.)  Id., 529..  FN3. In the context of parallel civil and criminal proceedings, a court may stay a civil action in its entirety in the interests of justice.   See Tyler v. Shenkman-Tyler, 115 Conn.App. 521, 528, 973 A.2d 163, cert. denied, 293 Conn. 920, 979 A.2d 493 (2009).   There, the court noted factors which “can be helpful,” id., 115 Conn.App. 530, in deciding whether to stay a civil proceeding.   These include:  “[1] the interests of the plaintiff in an expeditious resolution and the prejudice to the plaintiff in not proceeding;  [2] the interests of and burdens on the defendants;  [3] the convenience to the court in the management of its docket and in the efficient use of judicial resources;  [4] the interests of other persons not parties to the civil litigation;  and [5] the interests of the public in the pending civil and criminal actions.”   (Internal quotation marks omitted.)  Id., 529.

FN4. Besides the Town defendants, the other defendant is Quinebaug Valley Emergency Communications, Inc. (QVEC).  In the 2009 action, the East Killingly Volunteer Fire Department Co. is an apportionment defendant..  FN4. Besides the Town defendants, the other defendant is Quinebaug Valley Emergency Communications, Inc. (QVEC).  In the 2009 action, the East Killingly Volunteer Fire Department Co. is an apportionment defendant.

FN5. The record does not show how, if at all, the interests of other persons, not parties to these civil actions, would be affected by a stay..  FN5. The record does not show how, if at all, the interests of other persons, not parties to these civil actions, would be affected by a stay.

Shapiro, Robert B., J.