LLC v. O & G Industries, Inc. et al. (2012)

RULING ON MOTIONS TO DISMISS # 111 & 114

The apportionment defendants, URS Corporation AES (URS) and Gilbane Building Company (Gilbane) have filed motions to dismiss the apportionment complaints filed by the defendant/apportionment plaintiff, Tai Soo Kim Partners, LLC (Tai Soo Kim).   The apportionment defendants claim lack of personal jurisdiction because Tai Soo Kim failed to serve the apportionment complaints on them within 120 days as required by General Statutes § 52–102b(a).   The apportionment defendants also maintain that the court does not have subject matter jurisdiction over the apportionment complaints because the specific damages alleged by Tai Soo Kim are not the proper subject of apportionment under General Statutes § 52–572h.

SERVICE OF PROCESS

The court conducted an evidentiary hearing on January 9, 2012, and makes the following findings of fact:

1. Pursuant to § 52–102b(a), the last day for service of Tai Soo Kim's apportionment complaints was September 21, 2011.

2. On September 21, 2011, Tai Soo Kim delivered the apportionment complaints to state marshal Keith Niziankiewicz, and the marshal received them on that date.

3. Marshal Niziankiewicz determined he was unable to make service because the apportionment defendants were not in his precinct, although he had previously told the counsel for the apportionment plaintiff that he would be able to make service.

4. Soon after his receipt of the process, marshal Niziankiewicz forwarded it to marshal Scott Kraimer.   Marshal Kraimer effectuated service upon URS and Gilbane on September 23, 2011, within the 30–day period provided for in General Statutes § 52–593a.

The court concludes that Tai Soo Kim has substantially complied with § 52–593a.   Service of the apportionment complaints was timely made and is not barred by the 120–day limitation of § 52–102b(a).   The court acknowledges that marshal Niziankiewicz, who received the process on the 120th day of service, is not “the officer making service” as described in § 52–593a(b).  It also acknowledges that marshal Kraimer's return does not satisfy § 52–593a(b) in that it does not state the date the process was delivered to him.

Section 52–593a is a remedial statute which is to be liberally construed.   See Nine State Street, LLC v. Planning & Zoning Commission, 270 Conn. 42, 55, 850 A.2d 1032 (2004) and Lacasse v. Burns, 214 Conn. 464, 470, 475, 572 A.2d 357 (1990).   The court adopts the well-reasoned decision of Judge Hurley in the case of Minney v. Dasent, Superior Court, judicial district of New London, Docket No. CV 06 5000642 (October 23, 2006, Hurley, J.T.R.) (42 Conn. L. Rptr. 229, 231), wherein he concluded that an affidavit is sufficient to establish that the marshal received the process before the expiration of the statute of limitation.   In this case, the testimony of marshal Niziankiewicz, as well as his affidavit of receival, established that he received the process before the expiration of the 120–day time limitation.

The court has also considered our Supreme Court's review and construction of § 52–593a in the recent case of Tayco Corp. v. Planning & Zoning Commission, 294 Conn. 673, 986 A.2d 290 (2010).   In that case, the court noted “[s]tatutes of limitation implement the public policy of limiting the legal consequences of a wrong to a reasonable time after an event occurs ․ Proper service of process, in comparison, promotes the public policy of ensuring actual notice to the defendant.”  Id., 684–85.   The court stated that “[b]y allowing the marshal additional time in which to locate the serve a party, § 52–593a provides a method for ensuring correct service of process without infringing on a litigant's ability to timely file even when he or she used the entire amount of time allotted to bring an action pursuant to the applicable statute of limitations.   Thus, we conclude that the process must be delivered to the marshal for service prior to the expiration of the statute of limitations.”  (Emphasis in original.)  Id., 685.

A footnote in Tayco contains the following observation, which is relevant to this case:  “The legislature's policy of avoiding the unfairness that would result from holding a plaintiff responsible for a failure of service that is attributable to the marshal rather than the litigant is evident elsewhere in the statutes applicable to zoning appeals.”  (Emphasis added.)   Id., 682 n.10.

The court finds from the evidence presented that Tai So Kim delivered the process to a marshal on the last day of the 120–day period, and marshal Kraimer served the process on September 23, 2011, within the time limitation provided for in § 52–593a.   As permitted by Tayco, Tai So Kim used the full amount of time allowed by the applicable statute of limitations, and as required by Tayco, the apportionment defendants received timely notice of the action.

SUBJECT MATTER JURISDICTION

The apportionment defendants submit that the court lacks subject matter jurisdiction over the claims asserted against them in the apportionment complaints because § 52–572h limits apportionment to actions based on negligence that are brought to recover damages for damage to property.   They maintain that the underlying complaint and the apportionment complaints seek purely economic or commercial damages.

The underlying complaint was brought by Eastern Energy Services, LLC (Eastern) against Tai Soo Kim. Eastern alleges that during a project to renovate a building “as a direct and proximate result of Tai Soo Kim's breach of its professional duties and obligations, negligence and carelessness, and the resulting extra work, delays, inefficiencies and disruptions, Eastern Energy has suffered monetary damages.”   It is reasonable to infer from this allegation that construction delays and disruptions would have prevented the building from being used for its intended purpose as scheduled.   This allegation is sufficient to constitute a claim for damage to property to allow an apportionment claim under § 52–572h.   See Borman v. Wheeler Real Estate, Superior Court judicial district of Stamford–Norwalk at Stamford, Docket No. CV 08 5007830 (June 29, 2009, Pavia, J.) (48 Conn. L. Rptr. 97, 98–99) and authorities cited therein (damage to property requirement of 52–572h can be satisfied if relevant allegations include physical damage or loss of use of tangible property).

For the foregoing reasons the motions to dismiss are denied.

Domnarski, J.

Domnarski, Edward S., J.