AIU v. Servco Oil, Inc. (2011)

Caption Date:

MEMORANDUM OF DECISION RE MOTION TO STRIKE

Preliminary Statement

Before the court is the question of whether a cause of action commenced against “the right defendant” prior to the termination of the cause of action which had been brought against “the wrong defendant” may still be “saved” by operation of Conn. Gen.Stat. § 52–593.   This court holds that an action brought pursuant to § 52–593 must be commenced after the initial litigation is terminated.

The motion to strike is GRANTED.

Procedural Background

This is a subrogation claim brought against the defendant for damage to property belonging to the plaintiff's insureds.   Previously, the plaintiff brought an action against “Servco, Inc.” in the judicial district of Waterbury.   After the plaintiff obtained a default for failure of “Servco, Inc.” to appear, the plaintiff learned that “Servco, Inc.” was not in the oil distribution business and had no involvement with the plaintiff's insureds.   Upon researching the issue, plaintiff determined that the “right defendant” was this defendant, “Servco Oil, Inc.” Thereafter, the plaintiff commenced this action in the judicial district of Fairfield.   However, this case was commenced while the Waterbury case was still pending.   Rather than withdraw the case in Waterbury, the plaintiff moved to dismiss the case, which motion was granted on May 2, 2011 (Twombley, J.).

Both parties acknowledge that the statute of limitations for this action had run prior to bringing the action in the Fairfield judicial district.   The plaintiff argues that this cause of action is saved by the so-called “wrong defendant” statute, CGS § 52–593.   The defendant has moved to strike the complaint because this cause of action was commenced prior to the termination of the Waterbury cause of action, and therefore the savings provisions of § 52–593 had not been triggered.   The plaintiff responds that the Waterbury litigation was “constructively” dismissed when the default for failure to appear against Servco, Inc. was entered.

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.

Our Supreme Court has had recent occasion to discuss this statute:

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).

(Emphasis added.)  DiPietro v. Farmington Sports Arena, 123 Conn.App. 583 (2010).   The question here is one of statutory construction.

“As with any issue of statutory interpretation, our initial guide is the language of the operative statutory provisions.”  (Internal quotation marks omitted.)  Fimiani v. Star Gallo Distributors, Inc., 248 Conn. 635, 642, 729 A.2d 212 (1999).  “A cardinal rule of statutory construction is that where the words of a statute [or rule] are plain and unambiguous the intent of the [drafters] in enacting the statute [or rule] is to be derived from the words used ․ Where the court is provided with a clearly written rule, it need look no further for interpretive guidance.”  (Internal quotation marks omitted.)   Schiappa v. Ferrero, 61 Conn.App. 876, 882, 767 A.2d 785 (2001).

State v. Anderson, 74 Conn.App. 633, 6 (2003).

This court finds that the language of § 52–593 is clear and unambiguous.   The “one year time limitation” referred to in DiPietro, commences upon termination of the first suit.   Until that termination occurs, the protections of § 593 are not triggered.   The Waterbury litigation did not conclude until May 2, 2011 when the court entered a dismissal of that action.¹  Although that time period has not yet expired, it had yet to commence when this action was brought.   Therefore, the present action does not fall within the savings provisions of § 52–593.   A plaintiff relying upon a “saving” statute must demonstrate compliance with its provisions.   Vissichio v. Hollenbeck, 18 Conn.App. 515, 519 (1989);  Isaac v. Mount Sinai Hospital, 210 Conn. 721, 728 (1989).

The motion to strike is GRANTED.

K. DOOLEY, J.

FOOTNOTES

FN1. The plaintiff offers no authority for this court to conclude that the Waterbury litigation was “constructively” terminated prior to May 2, 2011..  FN1. The plaintiff offers no authority for this court to conclude that the Waterbury litigation was “constructively” terminated prior to May 2, 2011.

Dooley, Kari A., J.