Kathryn Krom v. In-Vest (2010)

Caption Date:

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT

This action arises out of a slip and fall that occurred on January 25, 2006.   The plaintiff brings this negligence action against the owners of the property on the date of the injury, In-Vest.   In-Vest filed a motion for summary judgment on the ground that this action is barred by the applicable statute of limitations, CGS § 52-584.¹  The plaintiff contends that the claims are “saved” by the application of CGS § 52-593, the so-called “wrong defendant” statute.²

For the reasons set forth below, the motion is GRANTED.

Standard of Review

A party seeking summary judgment has the burden of demonstrating the absence of any genuine issue of material facts which, under applicable principles of law, entitle him to judgment as a matter of law.  PB § 17-44;  Appleton v. Board of Education, 254 Conn. 205 (2000).   Conversely, the party opposing such a motion must provide an evidentiary foundation to show the existence of a genuine issue of material fact.  Id.

“Summary judgment may be granted where the claim is barred by the statute of limitations.”  Doty v. Mucci, 238 Conn. 800, 806 (1996).  “Summary judgment is appropriate on statute of limitation grounds when the material facts concerning the statute of limitations are not in dispute.”  Burns v. Hartford Hospital, 192 Conn 451, 452 (1984).

Discussion

At oral argument, counsel agreed that there are no facts in dispute relevant to this court's determination regarding the application of CGS § 52-593.   The parties further agreed that the court should take judicial notice of the court files for Dkt. No. CV-07-5009347S, captioned Kathryn Krom v. Felner Corp. et al., and Dkt. No. CV-08-5017283S, captioned Kathryn Krom v. Invest, LLC.

A detailed review of the history of the plaintiffs litigation arising out of the January 25, 2006 slip and fall revealed in these files is necessary.

In July 2007, the plaintiff commenced an action against Southport Post Road Limited Partnership (“Southport Post Road LP”) and the Felner Corporation (the “Felner Action”).   This action was commenced within the applicable statute of limitations.   In her complaint, the plaintiff alleged that the injury occurred at 2600 Post Road, Southport, Connecticut.   She named Southport Post Road LP as a defendant because, as owners, they allegedly controlled the premises at 2600 Post Road, Southport, Connecticut.³  During the discovery process, it was determined that the slip and fall actually occurred at 425 Post Road, Southport, Connecticut.   Southport Post Road LP is not the owner of this property and accordingly moved for summary judgment.

On June 12, 2008, while the motion for summary judgment was pending, the plaintiff withdrew her claim against Southport Post Road LP. On June 16, 2008, the plaintiff amended her complaint in the Felner action deleting any claim against Southport Post Road LP and correcting the address at which the slip and fall occurred.   The amended complaint is as to Felner Corporation only and alleges negligence in the control and maintenance of the property.

On July 16, 2008, while the Felner action was still pending, the plaintiff commenced a second action arising out of the slip and fall of January 25, 2006.   This complaint was against “Invest, LLC” as the property owners of 425 Post Road, Southport, Connecticut (The “Invest LLC action”) and alleged negligence in the control and maintenance of the property.   This action was commenced outside the applicable two-year statute of limitations.   However, it proceeded under the protection of CGS § 52-593.   At paragraph 15 of the Invest LLC complaint, the plaintiff avers:

This case is brought pursuant to C.G.S. Section 52-593, as the plaintiff initially failed to name the correct party as defendant, and thereby could not obtain judgment against this party.   In particular, the plaintiff named a party who, in fact, did not own this premises.   This case is brought within a year of the termination of that action.

(Emphasis added).   The paragraph clearly refers to the Felner action and the claim brought against Southport Post Road LP. That proceeding was terminated through the withdrawal of action filed June 12, 2008.   Thus, as averred, the Invest LLC action was timely under § 52-593.   Indeed, there was no claim that the Invest LLC action was barred by the statute of limitations.   Invest LLC moved for summary judgment.   It was established that Invest LLC did not own the property at the time of the plaintiff's slip and fall and the motion for summary judgment was granted in November 2009.

On January 10, 2010, in the Felner action, the court entered summary judgment in favor of Felner, a judgment on the merits of the claim against Felner.

By complaint dated February 18, 2010, over four years after the slip and fall, the plaintiff commenced the instant action against In-Vest.   At paragraph 16 of the complaint, the plaintiff avers:

This action is brought pursuant to C.G.S. § 52-593 ․ In particular, the last action failed because “Invest LLC” a subsequent owner was named.   This action names the proper parties.

The complaint against In-Vest is virtually identical to the prior complaint against Invest LLC, which was virtually identical to the complaint against Southport Post Road LP, when plaintiff erroneously believed each of those entities was the owner of the property.

Notwithstanding the language of paragraph 16, quoted above, the plaintiff now asserts that the instant action replaces the Felner action, and as such was brought within one year of the termination of that action.   She argues that the decision on the merits regarding Felner's liability established that Felner was “in fact” the “wrong defendant” for purposes of CGS § 52-593 and that she therefore had one year to institute a new action against the right defendant.

Conversely, the defendant asserts that this action is time barred because it was not brought within one year of the withdrawal of the action against the “wrong defendant” Southport Post Road LP.⁴

If this court determines that the “wrong defendant” was Southport Post Road LP, then this action is not timely as it was not commenced within one year following the termination of that matter.   If this court determines that the Felner Corporation was the “wrong defendant” the instant action is timely under § 52-593.

Conn. Gen.Stat. § 52-593 provides in pertinent part:

When a plaintiff in any civil action has failed to obtain judgment by reason of failure to name the right person as defendant therein, the plaintiff may bring a new action and the statute of limitations shall not be a bar thereto if service of process in the new action is made within one year after the termination of the original action.

CGS 52-593 was discussed by the Appellate Court quite recently in DiPietro v. Farmington Sports Arena, 123 Conn.App. 583 (2010).

“Under Connecticut law, a right person, as that term is used in 52-593, is one who, as a matter of fact, is a proper defendant for the legal theory alleged.”  Cogan v. Chase Manhattan Auto Financial Corp., supra, 276 Conn. 8. This language contemplates that, so long as the second action is brought within the one year time limitation, the defendant in that action may not avail itself of the statute of limitations.   The general remedial purpose of this statute is to relieve a plaintiff of the statute of limitations consequences where the plaintiff made a factual mistake in selecting her original defendant for the legal theory of the action, so long as the plaintiff brings the second action against the “right person” within the one-year period.   Because the statute is remedial in nature, it should be construed broadly to accomplish its remedial purpose.   See Vincent v. New Haven, 285 Conn. 778, 792, 941 A.2d 932 (2008).

Id. (emphasis added).

Thus, there is a required nexus between the factual error as to the identity of the liable party and the “theory of liability alleged.”  Cogan v. Chase Manhattan Auto Financial Corp., 276 Conn. 1, 9-10 (2005).   For example, in Cogan, the plaintiff originally sued two defendants, the operator of a vehicle and the operator's stepfather, under the family car doctrine, and secured as settlement the full amount of his liability insurance coverage.   Id. at 3. Thereafter, she sought to bring an action against the vehicle's owner.   The court held that § 52-593 did not save the second action from the statute of limitations because the first action was against a factually proper defendant under the theory alleged, namely, the family car doctrine, which does not depend on ownership of the vehicle.  Id. at 9-10.

The plaintiff here, relies heavily on the DiPietro case.   There, the plaintiff was allegedly injured at an indoor soccer facility.  DiPietro, 123 Conn.App. at 585.   She brought an action against an entity she believed to be in control of and responsible for the maintenance of that facility.  Id. at 588.   However, the entity she named did not exist at the time of the injury and so the named defendant was granted summary judgment.  Id. Thereafter, within one year, the plaintiff brought claims against additional defendants alleging, among other things, negligence in the control or possession of the soccer facility.  Id.

The defendants sought to restrict the application of § 52-593 on bases not germane to this matter.   However, the court, in determining that § 52-593 did “save” the subsequent claims, specifically noted that the subsequent suit identified the “right person” under the theory originally alleged against the entity which was determined to be the “wrong person.”  Id. at 594-95.

To the extent that DiPietro has application here, it is to confirm that the complaint brought pursuant to § 52-593 against Invest LLC was proper.   The Invest LLC action replaced the Southport Post Road LP action insofar as they both alleged negligence in the ownership, control and maintenance of the premises.   This plaintiff sought originally to establish liability against Southport Post Road LP, as the property owner and Felner, as the property manager, in a single count as to both, alleging control of the premises and negligent maintenance thereof.   When it was determined that Southport Post Road LP was not the owner of the property, the plaintiff brought the parallel and second action against Invest LLC, claiming ownership and control of the premises and negligent maintenance thereof.   That action resulted in judgment in favor of Invest LLC as they too were not the owners of the property.   After summary judgment was rendered in favor of Felner Corporation in the Felner action, the instant action was commenced against In-Vest.

Although all of the allegations in each of the various complaints are based upon control and negligent maintenance of the property, the unique procedural history of these claims, make this case more akin to that which was presented in Cogan, than that which was presented in DiPietro.⁵  However, while both are instructive, neither controls in light of the unique procedural posture of this matter.

The plaintiff in these various cases has pursued claims against purported property owners and a purported property manager.   Her efforts to sue the property owner as one who jointly controlled and maintained the property, within the applicable statute of limitations even as extended by § 52-593 failed.   In asserting that the “Felner Corporation” is now the “wrong defendant” for purposes of § 52-593, she asks this court to ignore the invocation of the statute in favor of her action against Invest, LLC and her previous acknowledgment that Southport Post Road LP was the “wrong defendant” for the theory of liability she was pursuing.

Even a broad and remedial reading of the statute does not extend the statute of limitations for this cause of action.   This court finds that Southport Post Road LP was the original and controlling “wrong defendant” for purposes of § 52-593.   The Invest LLC action was already a “saved” cause of action under § 52-593 after the plaintiff sued the “wrong defendant” Southport Post Road LP. That the plaintiff was wrong a second time renders her without remedy insofar as the statute of limitations is concerned.⁶  It has expired.   Summary judgment is entered in favor of In-Vest.

SO ORDERED

K. DOOLEY, J.

FOOTNOTES

FN1. CGS § 52-584 provides for a two-year statute of limitations..  FN1. CGS § 52-584 provides for a two-year statute of limitations.

FN2. At oral argument held September 13, 2010, counsel for both the plaintiff and defendant agreed that, although identified in the papers as applicable, CGS § 52-592, the “accidental failure of suit” statute is not at issue here..  FN2. At oral argument held September 13, 2010, counsel for both the plaintiff and defendant agreed that, although identified in the papers as applicable, CGS § 52-592, the “accidental failure of suit” statute is not at issue here.

FN3. The original complaint included allegations that Felner also controlled the premises as the property manager..  FN3. The original complaint included allegations that Felner also controlled the premises as the property manager.

FN4. Neither party specifically addresses the role and impact of the Invest LLC action on these issues..  FN4. Neither party specifically addresses the role and impact of the Invest LLC action on these issues.

FN5. DiPietro did not involve serial actions or the termination of more than one cause of action by reason of having sued the “wrong defendant.”   Nor were the legal defenses raised in DiPietro at issue in this case.   For these reasons, the holding in DiPietro is of limited assistance in resolving this matter..  FN5. DiPietro did not involve serial actions or the termination of more than one cause of action by reason of having sued the “wrong defendant.”   Nor were the legal defenses raised in DiPietro at issue in this case.   For these reasons, the holding in DiPietro is of limited assistance in resolving this matter.

FN6. Had the present action against In-Vest been brought within one year of the termination of proceedings against Southport Post Road LP, the action would be “saved” even if Invest LLC had also been erroneously sued during that time period.   See e.g., DiPietro, supra.  (Plaintiff brought two actions, later consolidated, within one year of the termination of the original cause of action.)   At oral argument, counsel for the plaintiff acknowledged that § 52-593 would not save a third and subsequent cause of action.   It does not contemplate serial lawsuits and does not operate to extend by another year the applicable statute of limitations with each “wrong defendant” sued..  FN6. Had the present action against In-Vest been brought within one year of the termination of proceedings against Southport Post Road LP, the action would be “saved” even if Invest LLC had also been erroneously sued during that time period.   See e.g., DiPietro, supra.  (Plaintiff brought two actions, later consolidated, within one year of the termination of the original cause of action.)   At oral argument, counsel for the plaintiff acknowledged that § 52-593 would not save a third and subsequent cause of action.   It does not contemplate serial lawsuits and does not operate to extend by another year the applicable statute of limitations with each “wrong defendant” sued.

Dooley, Kari A., J.