Robert Folson v. John Pulley (2011)

MEMORANDUM OF DECISION IN RE MOTION FOR SUMMARY JUDGMENT (# 104)

FACTS

This case presents a complex procedural history involving a prior action, Folson v. Elrac, LLC,¹ Superior Court, judicial district of New Haven, Docket No. NNH CV 105033177 (prior action).   In the prior action, the plaintiff, Robert Folson, initially filed a complaint for negligence against Elrac, LLC (Elrac), as the sole defendant, on March 4, 2010.   Elrac filed a motion to strike the complaint on March 25, 2010, on the ground that the plaintiff did not allege any negligence on the part of Elrac, and that federal law prohibited the imposition of vicarious liability on a motor vehicle owner for damages caused by the negligence of a lessee.   Judge Alander granted the motion to strike on April 26, 2010.

The plaintiff moved to cite in the current defendant, John R. Pulley, on July 14, 2010, arguing that Pulley had been inadvertently omitted from the original suit.   Pulley objected to the plaintiff's motion to cite in on the grounds that:  (1) the “wrong defendant” statute, General Statutes § 52–593, did not apply;  (2) the period of the statute of limitations had passed;  and (3) there was no pending case for Pulley to be cited into at that time because the complaint had been stricken, and no new complaint had been submitted.

Prior to any ruling on the motion to cite in, Elrac filed a motion for judgment on November 15, 2010, because the plaintiff had failed to file a new complaint within fifteen days after the motion to strike was granted on April 26, 2010.   On November 29, 2010, Judge Blue issued an order stating that the motion for judgment was “[g]ranted unless a new complaint is filed by December 20, 2010.”   The plaintiff filed an amended complaint on December 20, 2010, adding Pulley as a defendant.

Elrac and Pulley filed an objection to the amended complaint on December 29, 2010, on the grounds that:  (1) the statute of limitations had expired;  (2) the plaintiff did not request leave of the court to add an additional defendant;  (3) the plaintiff's motion to cite in had not yet been ruled upon;  and (4) the plaintiff's amended complaint was fatally defective because it did not include a return date on the writ of summons.   The court sustained the objection on January 24, 2011, because the plaintiff did not file a brief in opposition and did not appear at oral argument.

The plaintiff filed a motion to reargue and reconsider the objection to the amended complaint on February 3, 2011, which was granted by the court on February 14, 2011.   The court heard the motion to cite in Pulley as an additional defendant as well as the objection to the amended complaint at short calendar on March 7, 2011.   In its memorandum of decision issued on May 4, 2011, the court concluded, inter alia, that the defendants' objection on statute of limitations grounds was procedurally inappropriate in the context of a motion to cite in or an objection to an amended complaint.   The court, therefore, did not reach the issue of whether the statute of limitations had expired.   After addressing numerous additional issues not relevant to the present motion for summary judgment, the court granted the plaintiff's motion to cite in Pulley, overruled the objection to the amended complaint as to Pulley, and ordered the plaintiff to file a complaint against Pulley, nunc pro tunc, by June 16, 2011.   The court sustained the objection to the amended complaint as to Elrac, and granted judgment in Elrac's favor.

The plaintiff subsequently filed a new complaint against Pulley in accordance with the court's memorandum of decision on June 20, 2011, which was docketed as a new action and assigned the present docket number.   Pulley was served on June 14, 2011.   The operative complaint alleges that, on February 12, 2008, Pulley was negligent in conducting his motor vehicle and caused a collision resulting in injuries to the plaintiff.   In his June 23, 2011 answer, Pulley admitted that the collision occurred on February 12, 2008, and pleaded as a special defense that the plaintiff's action is barred by the limitations period set forth in General Statutes § 52–584.²

Pulley then filed the present motion for summary judgment on June 30, 2011, on the ground that the action was commenced more than two years after the injuries were sustained, thus exceeding the time set forth by the statute of limitations, § 52–584.   Pulley attached the following exhibits:  (A) a copy of the original 2010 summons and complaint against Elrac, LLC;  (B) a copy of the December 2010 summons and amended complaint filed against Elrac and Pulley;  (C) a copy of the February 12, 2008 Connecticut Uniform Police Accident Report;  (D) copies of correspondence between the New Jersey Manufacturers Insurance Company and the plaintiff's attorney;  and (E) a copy of the plaintiff's July 13, 2010 motion to cite in Pulley.

The plaintiff filed an objection and accompanying memorandum of law on July 29, 2011.   He objected on the grounds that there was a genuine issue of material fact, and that the issue of the statute of limitations was barred by collateral estoppel and res judicata due to this court's May 4, 2011 decision which allowed the plaintiff to cite in Pulley and amend the prior complaint.   There were oral arguments on this matter at short calendar on August 1, 2011, at which time the court gave the parties permission to submit supplemental briefs.   The plaintiff submitted a supplemental brief on August 9, 2011, and Pulley submitted a reply on August 10, 2011.

DISCUSSION

“Summary judgment in favor of the defendant is properly granted if the defendant in its motion raises at least one legally sufficient defense that would bar the plaintiff's claim and involves no triable issue of fact.”   (Internal quotation marks omitted.)  Serrano v. Burns, 248 Conn. 419, 424, 727 A.2d 1276 (1999).  “Summary judgment may be granted where the claim is barred by the statute of limitations.”  Doty v. Mucci, 238 Conn. 800, 806, 679 A.2d 945 (1996).   Summary judgment is appropriate on statute of limitations grounds when the “material facts concerning the statute of limitations [are] not in dispute ․” Burns v. Hartford Hospital, 192 Conn. 451, 452, 472 A.2d 1257 (1984).  “[S]ummary judgment is proper where the affidavits do not set forth circumstances which would serve to avoid or impede the normal application of the particular limitations period.”  (Internal quotation marks omitted.)   LaBow v. Rubin, 95 Conn.App. 454, 471, 897 A.2d 136, cert. denied, 280 Conn. 933, 909 A.2d 960 (2006).   An admission in a defendant's answer is a judicial admission conclusive on the defendant and the matter admitted is not in issue.”  Jones Destruction, Inc. v. Upjohn, 161 Conn. 191, 199, 286 A.2d 308 (1971).

Pulley moves for summary judgment on the ground that the plaintiff's action is barred by the two-year limitations period set forth in § 52–584.   In his objection to Pulley's motion for summary judgment, the plaintiff states that Pulley “has already raised, argued and litigated his position that the suit is barred by the statute of limitations.”   Specifically, the plaintiff argues that language in this court's May 4, 2011 decision indicates that this issue was already litigated in the prior action, and thus barred from consideration by this court under the doctrines of res judicata and collateral estoppel.

“Application of the doctrine of res judicata requires that there be a previous judgment on the merits.”  Cayer Enterprises, Inc. v. DiMasi, 84 Conn.App. 190, 193, 852 A.2d 758 (2004);  see also Virgo v. Lyons, 209 Conn. 497, 501, 551 A.2d 1243 (1988).  “[J]udgments based on the following reasons are not rendered on the merits:  want of jurisdiction;  pre-maturity;  failure to prosecute;  unavailable or inappropriate relief or remedy;  lack of standing.”  (Internal quotation marks omitted.)  Cayer Enterprises, Inc. v. DiMasi, supra, 84 Conn.App. 193.   Procedural determinations, such as dismissals for untimeliness, are not judgments on the merits for the purposes of res judicata.   See Linden Condominium Assn., Inc. v. McKenna, 247 Conn. 575, 595, 726 A.2d 502 (1999) (dismissal based on statute of limitations is not a judgment on the merits);  Advest, Inc. v. Wachtel, 235 Conn. 559, 566, 668 A.2d 367 (1995) (same).

In the prior action, Pulley raised the statute of limitations in both his objection to the amended complaint and his objection to the motion to cite in.   The plaintiff has misconstrued the court's May 4, 2011 memorandum of decision as setting forth a ruling on the merits of the limitations issue.   Contrary to the plaintiff's assertion, the court merely concluded that Pulley's objections were not proper procedural vehicles for the court to hear the merits of the statute of limitations issue.   The court did not make any factual or legal determination on the applicability of the statute of limitations, and thus there has been no judgment on the merits with regard to that issue.   Accordingly, the doctrine of res judicata does not apply in this instance.

“[C]ollateral estoppel, or issue preclusion, prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action ․ For an issue to be subject to collateral estoppel, it must have been fully and fairly litigated in the first action ․ An issue is actually litigated if it is properly raised in the pleadings or otherwise, submitted for determination, and in fact determined.”  (Citations omitted;  internal quotation marks omitted.)  New England Estates, LLC v. Branford, 294 Conn. 817, 838–39, 988 A.2d 229 (2010).   As stated previously, the court never adjudicated the statute of limitations issue in the prior action.   The court simply concluded that the limitations issue was not properly raised by way of Pulley's objections.   The court never made an actual determination as to which statute of limitations applied or whether the limitations period had expired.   Thus, Pulley's statute of limitations defense in the present case is not barred by collateral estoppel.

Given that the special defense is not barred by res judicata or collateral estoppel, the court will address the merits of Pulley's statute of limitations argument.   In his motion for summary judgment, Pulley asserts that the statute of limitations has passed, and that the plaintiff's claim was commenced more than two years from the date of the injuries under General Statutes § 52–584.   At short calendar, on August 1, 2011, the court gave the parties permission to file supplemental briefs, and both parties submitted supplemental memoranda.   The plaintiff argues that this court's May 4, 2011 ruling allowed for the plaintiff to file a complaint, nunc pro tunc, and so the operative date for the commencement of the action against Pulley is July 14, 2010, when the plaintiff originally moved to cite in Pulley in the prior action.   The plaintiff argues that the statute of limitations was tolled while this court made its determination on the July 14, 2010 motion to cite in as well as the December 29, 2010 objection to the amended complaint.   The plaintiff further argues that he had three years to bring a complaint under General Statutes § 52–577, rather than two years under § 52–584, and thus the complaint was timely.³

The defendant replies that § 52–577 does not apply and that under § 52–584, the plaintiff had two years in which to file his complaint against Pulley.   He argues that any events occurring on or after July 14, 2010 could not toll the statute of limitations, because as of that date, the plaintiff was already outside the statute of limitations, which would have run on February 12, 2010.

The court must determine whether § 52–584 or § 52–577 applies.  “The question of whether a claim is barred by the statute of limitations is a question of law.”  (Internal quotation marks omitted.)  Caciopoli v. Lebowitz, 131 Conn.App. 306, 315, 26 A.3d 136 (2011).  Section 52–577 states that “[n]o action founded upon a tort shall be brought but within three years from the date of the act or omission complained of.”   In comparison, § 52–584 provides in relevant part:  “No action to recover damages for injury to the person, or to real or personal property, caused by negligence or by reckless or wanton misconduct ․ shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered ․”

In addressing the scope of § 52–577, we have stated that [t]he three-year limitation of § 52–577 is applicable to all actions founded upon a tort which do not fall within those causes of action carved out of § 52–577 and enumerated in § 52–584 or another section ․ Thus, the three year limitation period of § 52–577 applies to all actions based on a tort unless there has been a specific statutory exclusion.”  (Citations omitted;  internal quotation marks omitted.)  Travelers Indemnity Co. v. Rubin, 209 Conn. 437, 441, 551 A.2d 1220 (1988).

The plaintiff's complaint alleges that the collision occurred because of Pulley's negligence, in that he “failed to keep a proper lookout ․ was driving too fast ․ [and] he changed lanes when it was dangerous.”   The plaintiff further alleges that his injuries were a result of the collision allegedly caused by Pulley's negligence.   Accordingly, the plaintiff's claim falls squarely within the scope of the statute of limitations set out in § 52–584, and thus § 52–577 is inapplicable.

For the purposes of determining if an action was timely under § 52–584, “an injury occurs when a party suffers some form of actionable harm.”  (Internal quotation marks omitted.)  Lindsay v. Pierre, 90 Conn.App. 696, 700, 879 A.2d 482 (2005) (finding that the date of a motor vehicle accident was the relevant time that began the time period for bringing a negligence claim).   In the present case, there is no factual dispute as to the day on which the statute of limitations began to run.   The Plaintiff has alleged, and Pulley has admitted, that the parties were involved in a motor vehicle collision on February 12, 2008.   The plaintiff does not claim that he did not discover his injuries at that time.   Accordingly, the statute of limitations expired on February 12, 2010, two years after the injury occurred.   This was several months before July 14, 2010, when the plaintiff made the motion to cite in Pulley in the prior action.   Thus, the motion to cite in was made well beyond the statute of limitations and therefore could not have tolled the running of the limitations period.   Pulley was not served on or before February 12, 2010.   Since there is no genuine issue of material fact with regard to whether the statute of limitations has run, Pulley's motion for summary judgment is granted.

CONCLUSION

For the foregoing reasons, the motion for summary judgment is granted in favor of the defendant, John R. Pulley.

Wilson, J.

FOOTNOTES

FN1. The original summons and case header listed the original defendant as Eltrac, Inc. or Eltrac, LLC;  the correct name appears to be Elrac, LLC, as stated in the party's appearance filed with the court on March 23, 2010..  FN1. The original summons and case header listed the original defendant as Eltrac, Inc. or Eltrac, LLC;  the correct name appears to be Elrac, LLC, as stated in the party's appearance filed with the court on March 23, 2010.

FN2. General Statutes § 52–584 provides, in relevant part:  “No action to recover damages for injury to the person, or to real or personal property, caused by negligence or by reckless or wanton misconduct ․ shall be brought but within two years from the date when the injury is first sustained or discovered ․.  FN2. General Statutes § 52–584 provides, in relevant part:  “No action to recover damages for injury to the person, or to real or personal property, caused by negligence or by reckless or wanton misconduct ․ shall be brought but within two years from the date when the injury is first sustained or discovered ․

FN3. The plaintiff further argues that there is a genuine issue of material fact as to whether § 52–577 applies, and thus that summary judgment is not proper.   The plaintiff, however, fails to note that the question of which statute of limitations applies is a question of law.   Lombard v. Peters, 79 Conn.App. 290, 294–95, 830 A.2d 346 (2003)..  FN3. The plaintiff further argues that there is a genuine issue of material fact as to whether § 52–577 applies, and thus that summary judgment is not proper.   The plaintiff, however, fails to note that the question of which statute of limitations applies is a question of law.   Lombard v. Peters, 79 Conn.App. 290, 294–95, 830 A.2d 346 (2003).

Wilson, Robin L., J.