Thomas Simonu v. State of Connecticut (2011)

MEMORANDUM OF DECISION RE (# 111) DEFENDANT'S MOTION TO DISMISS AND/OR SUMMARY JUDGMENT

This case involves a claim by the plaintiff, Thomas Simonu (“Simonu”) against the defendant, State of Connecticut (“State”) for injuries and other damages allegedly sustained in an August 22, 2007 motor vehicle collision in Waterbury involving the plaintiff's vehicle and a Connecticut Department of Transportation truck driven by Royal Gladding, a State employee.

In 2009, Simonu brought an action against Gladding for the same collision alleging identical facts as in the instant case against the State.   On March 1, 2010 this court (Radcliffe, J.) granted Gladding's motion to dismiss Simonu v. Gladding for the reason that the doctrine of sovereign immunity precluded a suit against him as he was a State employee acting within the scope of his employment at the time of the collision.

Within one year of that dismissal, Simonu commenced the instant suit against the State:  alleging in his complaint that it was being brought “under the Accidental Failure of Suit doctrine § 52–592 and/or § 52–593 within one (1) year of the granting of the motion to dismiss.”

General Statute § 52–592—Accidental failure of suit;  allowance of new action, provides, in relevant part, “(a) If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits ․ because the action has been dismissed for want of jurisdiction ․ the plaintiff ․ may commence a new action ․ for the same cause at any time within one year after the determination of the original action ․”

General Statute § 52–593—Action against wrong defendant;  allowance of new action, provides in relevant 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 the service of process in the new action is made within one year after the termination of the original action.”

The plaintiff maintains that he is entitled to bring this action under § 52–592 and/or § 52–593.   The defendant argues that he is not entitled to bring this suit under either statute.

The defendant State has brought a motion to dismiss and/or motion for summary judgment claiming that Simonu cannot proceed under either statute.

As a preliminary matter, the plaintiff has objected to the attempt by the defendant to use a motion for summary judgment to oppose the plaintiff's reliance upon both §§ 52–592 and 52–593.

The plaintiff argues that the defendant's motion for summary judgment should be denied by this court because it was filed after the case had been assigned for trial and without permission of the court as is required by P.B. § 17–44.

The requirement that a motion for summary judgment be filed prior to the scheduling of the trial date is discretionary.  “The purpose of requiring the court to file requests for summary judgment after trial assignment is to review the legitimacy of the delay in filing the request.”   Mips v. Becon, Inc., Superior Court, j.d. of Hartford Docket No. CV 97 05 75373 (August 20, 2000, Booth, J.);   Volduro v. Connecticut Post Mall, LLC, Superior Court, j.d. Ansonia/Milford, Docket No. CV 04 4008754 (Sept. 11, 2007, Esposito, J.).   Whether or not to allow the filing of a motion for summary judgment at this time is “within the sound discretion of the trial court” to do so.  Honan v. Dimyan, 52 Conn.App. 123, 127 (1999).   Noting that the motion for summary judgment was filed approximately 10 weeks after the assignment of a trial date but five months before the date for trial, the court finds that the delay in filing the request was not unduly prejudicial to the plaintiff.  Practice Book § 17–49 provides that summary judgment “shall be rendered forthwith if the pleadings, affidavits and any other proof submitted to show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”  “In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.”  Miles v. Foley, 253 Conn. 381, 385–86 (2000).  “In opposing a motion for summary judgment, a party is not required to present evidence necessary to prevail at trial, only evidence sufficient to raise issues of fact.”  Vaillancourt v. Latifi, 81 Conn.App. 541, 544 (2004).  “To satisfy his burden, the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact.”  Fogarty v. Rashaw, 193 Conn. 442, 445 (1984).   “Although the moving party has the burden of presenting evidence that shows the absence of any genuine issue of material fact, the opposing party must substantiate its adverse claim with evidence disclosing the existence of such an issue.”  Haesche v. Kissner, 229 Conn. 213, 217 (1994).

DEFENDANT'S MOTION TO DISMISS THIS ACTION BROUGHT UNDER § 52–592.

The plaintiff argues in his brief that a motion to dismiss is not the proper procedure to use when contesting the use of § 52–592, the accidental failure of suit.   The court agrees.  “As a general matter, a motion to dismiss is not the proper procedural instrument for challenging the applicability of § 52–592(a), the proper challenge being by way of a properly pleaded special defense.”   Labow v. Labow, 85 Conn.App. 746, 750 (2002).  “To enable a Plaintiff to meet the burden of establishing the right to avail himself ․ of § 52–592, a Plaintiff must be afforded an opportunity to make a factual showing that the prior dismissal was a matter of form ․” Stevenson v. Peerless Industries, Inc., 72 Conn.App. 601, 607 (2002).

For the foregoing reason, the State's motion to dismiss is denied.

DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AS TO § 52–592.

The defendant has moved this court for summary judgment as to the plaintiff's argument that § 52–592 permits him to bring this action.   It maintains that because his original action against Gladding was dismissed by reason of sovereign, immunity under § 4–165, that dismissal should be deemed a dismissal on the merits not for the reason that the court lacked the requisite jurisdiction to hear it.

The plaintiff points out that in the Gladding case the court granted a motion to dismiss, not a motion for summary judgment, after finding that the action against Gladding was barred by the doctrine of sovereign immunity.   The plaintiff relies upon the holding in Lampsaona v. Jacobs, 209 Conn. 724 (1989) wherein our Supreme Court held, “In determining whether a court lacks subject matter jurisdiction, the inquiry usually does not extend to the merits of the case.”  Id. at 728.

“A ruling on a motion to dismiss is neither a ruling on the merits of the action ․ nor a test of whether the complaint states a cause of action.   Motions to dismiss are granted solely on jurisdictional grounds.”  Villager Pond, Inc. v. Town of Darien, 54 Conn.App. 565, 507–71 (1992).

The court agrees with the plaintiff's argument as indicated by the cases cited.   The court finds that the Gladding case was not decided on the merits but was dismissed for lack of subject matter jurisdiction.   The plaintiff is not precluded from using the saving statute, § 52–592.

The defendant has also moved for summary judgment arguing that the plaintiff's case is not entitled to the saving effect of § 52–592 because it was not “brought for the same cause” as the Gladding case, as required by that statute for the reason that original defendant, Royal Gladding is not named as defendant while a different defendant, the State of Connecticut is.

The plaintiff disagrees and cites Issac v. Mt. Sinai Hospital, 210 Conn. 724 (1989) in which the court held, “A change of parties does not preclude an application of [a saving] statute where the change is merely nominal or the interest represented in the renewed action is identical with that in the original action.”  Id. at 733.

For the foregoing reasons, the defendant's motion for summary judgment as to the application of § 52–592 is denied.

In its motion for summary judgment as to § 52–592, the State goes on to argue that even if the court were to determine that the case could be brought under either statute, this action must fail because it is not brought for the “same cause” as Simonu v. Gladding.   It notes that § 52–592(a) provides, in relevant part, “If an action commenced within the time limited by law, has failed one or more times to be tried on its merits because ․ the action has been dismissed for want of jurisdiction ․ the plaintiff ․ may commence a new action ․ for the same cause at any time within one year after the determination of the original action ․” (emphasis added).   The State maintains that because this action is brought against a different defendant therefore it is not “the same cause” and, for that reason, § 52–592 is not applicable.   It argues that § 52–592 does not authorize the commencement of a suit against a different person.

The State further argues that § 52–593 provides in relevant 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.”   The State maintains that “failure to name the right person” has a very specific import.   It argues that what is meant by the statute is a situation where the plaintiff sued the wrong Royal Gladding (as if there could be two individuals by that same name), or if the plaintiff had been misled into believing that driver was Royal Gladding when in fact it was some other State truck driver.   The State maintains that Simonu did name the right person, but he was immune from suit because of the sovereign immunity doctrine.   For that reason, the State claims, § 52–593 does not apply and this case must be dismissed.   As authority for its position about “wrong person,” the State cites Isidro v. State, 62 Conn.App. 545 (2001), a case in which the original defendant was a State trooper for a collision while he was on duty.   In that case, as in Simonu v. Gladding, the court granted a dismissal on the basis of sovereign immunity and the plaintiff then sued the State.

In dismissing the subsequent suit against the State, the court went on to cite Perzanowski v. New Britain, 183 Conn. 504 (1981), a case involving an initial suit against a municipal employee which was dismissed under the doctrine of sovereign immunity.   In that case the court held that,

§ 52–593 would apply in a situation in which a plaintiff erroneously sues A under the mistaken belief that A negligently operated or owned a vehicle, when in fact B operated or owned the vehicle.   In Perzanowski, such a situation did not occur.   There, the plaintiff's original civil rights action failed against the defendant city because the city was immune from liability in such an action.   When the plaintiff later brought an action against the city under a different legal theory, the trial court dismissed the action for failure to comply with the statute of limitations.   The plaintiff appealed from that judgment, arguing that § 52–593 applied and that, thus, the action was not barred on the basis of the statute of limitations.   Our Supreme Court refused to apply § 52–593 because the plaintiff's original action was not dismissed as a result of “a mistake in naming a defendant” Perzanowski v. New Britain, supra, 507.

The facts in Isidro and the instant case are almost identical with one critical difference.   As noted, in Isidro, the plaintiff stipulated that she knew the car that was driven by state police officer Roger Weissinger was owned by the State and yet she did not sue the State at that time.

In the instant case, the plaintiff made no such stipulation.   In fact, he and his counsel at the time of the Gladding suit relied upon a police report that indicated the owner of the vehicle in question was Edhart Leasing Company, not the State of Connecticut.

As the plaintiff points out, the court in Isidro noted that, “Our Supreme Court has recognized that § 52–593 applies only in circumstances in which the plaintiff's original action failed by reason by reason of naming, in fact, the wrong defendant that is, in cases in which the naming of the wrong defendant was the product of a reasonable and honest mistake of fact as to the identity of the truly responsible individual,” citing Perzanowski v. New Britain, supra, at 507.

The facts in this case support the plaintiff's contention that his failure to bring suit against the State of Connecticut was the result of a reasonable and honest mistake of fact.

Having made that finding, the court hereby denies the motion for summary judgment and the motion to dismiss as to the plaintiff's cause of action based upon both §§ 52–592 and 52–593.

BY THE COURT,

JOSEPH W. DOHERTY, JUDGE

Doherty, Joseph W., J.