Calogero J. Marino v. Linda Livieri, Administratrix (2010)

MEMORANDUM OF DECISION RE MOTION TO DISMISS (No. 102)

The motion to dismiss now before the court raises an issue under Ruddock v. Burrowes, 243 Conn. 569, 706 A.2d 967 (1998).   Using a Ruddock analysis, the court must decide whether conduct causing the dismissal of a prior action was “so egregious as to bar recourse to” the accidental failure of suit statute, Conn. Gen.Stat. § 52-592(a).  243 Conn. at 576.   For the reasons set forth below, the court determines that the conduct in question was not so egregious.

This action, brought by Calogero J. Marino, arises out of a motor vehicle accident that occurred in Wallingford on May 14, 2006.

On April 15, 2008, the original defendant, Elaine M. Burgess, was served with process in the predecessor action, Marino v. Burgess, No. CV08-5019866 (Marino I ).   Burgess died on October 12, 2008.   On November 16, 2008, her attorney gave Marino's attorney a written notice of death.

Conn. Gen.Stat. § 52-599(b) provides that, “If a party defendant dies, the plaintiff, within one year after receiving written notification of the defendant's death, may apply to the court in which the action is pending for an order to substitute the decedent's executor or administrator in the place of the decedent, and, upon due service and return of the order, the action may proceed.”   Marino did not file a motion to substitute until January 27, 2010.   On June 1, 2010, the court (Robinson, J.) granted the defendant's motion to dismiss.  Marino v. Burgess, 50 Conn. L. Rptr. No. 1, 22 (August 30, 2010).

The present action (Marino II ) was commenced by service of process on August 24, 2010.   The defendant in Marino II is the administratrix of Burgess's estate.   The complaint states that the action is brought pursuant to Conn. Gen.Stat. § 52-592.

On November 24, 2010, the defendant in Marino II filed the motion to dismiss now before the court.   The motion claims that, “this Court lacks jurisdiction because the Plaintiff commenced this lawsuit outside of the two-year statute of limitations set forth in Conn. Gen.Stat. § 52-584.   Moreover, the Plaintiff's claims are not saved by Conn. Gen.Stat. § 52-592, the Connecticut accidental failure of suit statute.”

The motion was argued on December 20, 2010.   At the hearing, both parties waived the right to an evidentiary hearing.   It is common ground that the motion must be granted unless the action is saved by § 52-592.

The defendant principally relies on Walworth v. Hartford Hospital, 23 Conn.App. 404, 580 A.2d 545 (1990).   On close reading, however, Walworth is of little assistance to the defendant.

The plaintiffs in Walworth, like the plaintiff here, had failed to appoint an administrator or executor in a timely manner pursuant to § 52-599.   The plaintiffs in Walworth, however, had filed the requisite motion to substitute “only when confronted with the defendants' motions to dismiss.”   23 Conn.App. at 409.   More importantly, the plaintiffs in Walworth, compounded their dilatory ways by a “failure to file a memorandum in opposition to the defendants' motions as required by [the] Practice Book.” Id., at 405.   The Appellate Court regarded this latter oversight as particularly egregious.   It framed the question presented as “whether an action dismissed for failure to file a memorandum in opposition to a motion to dismiss can be reinstituted under ․ § 52-592.”  Id., at 404.   It held that the answer to this question was in the negative.  Id., at 409.

The approach taken by the Appellate Court in Walworth was subsequently endorsed, in a more comprehensive opinion, by the Supreme Court in Ruddock.  Ruddock seeks to accommodate two competing principles.   One principle is that “ § 52-592(a) is remedial in nature and, therefore, warrants a broad construction.”  243 Conn. at 575.   A second, competing principle is that, “in the event of noncompliance with a court order, the directives of caseflow management authorize trial courts, in appropriate circumstances, to take action against either the errant attorney or the litigant who freely chose the attorney.”  Id. To accommodate these conflicting principles, the trial court must determine whether a disciplinary dismissal involved “the occurrence of misconduct so egregious as to bar recourse to § 52-592.”  Id., at 576.  Walworth was cited as an illustration of this approach.  Id., at 578.

The inquiry under Ruddock “may be conceptualized as a continuum whereupon a case must be properly placed between one extreme of dismissal for mistake and inadvertence, and the other extreme of dismissal for serious misconduct or cumulative transgressions.”  Vestuti v. Miller, 124 Conn.App. 138, 145, 3 A.3d 1046 (2010).  (Internal quotation marks and citation omitted.)   The proper placement of a particular case on this continuum is necessarily a matter of judgment.   In this case, based on the file in Marino I and the submitted materials and oral arguments in Marino II, the court finds that the dismissal in Marino I was for mistake and inadvertence rather than for misconduct or cumulative transgressions.

The plaintiff's shortcoming in Marino I was a misconstruction of the legal meaning of the statutory phrase “written notification” in § 52-599(b) rather than misconduct or cumulative transgressions.   There is no evidence that the plaintiff violated any order of the court or any dictate of the Practice Book. Consequently, the specific concern addressed in Ruddock -viz. “noncompliance with a court order,” 243 Conn., at 575-is not a concern in this case.   Under these circumstances, the alternative principle identified by Ruddock -viz, that “ § 52-592(a) is remedial in nature and, therefore, warrants a broad construction,” id.-controls.

The plaintiff's failure in Marino I was the misconstruction of the one-year deadline set forth in Conn. Gen.Stat. § 52-599(b).  Due to this misconstruction, the statutory deadline was missed by approximately two months and ten days.   This is a classic case which § 52-592(a) was designed to address.  “The burden of bringing a new action sufficiently vindicates the demands of caseflow management.”  Ruddock v. Burrowes, supra, 243 Conn. at 577.

The motion to dismiss is denied.

Jon C. Blue

Judge of the Superior Court

Blue, Jon C., J.