Kentrale Evans v. Kenneth Thomas et al. (2012)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (# 107)

FACTS

This action arises out of a motor vehicle accident that occurred on September 1, 2009.   The plaintiff, Kentrale Evans alleges that as a result of the accident he sustained injuries.   The defendants, Kenneth Thomas and Donna Thomas have moved for summary judgment claiming that the applicable statute of limitations has expired.   The plaintiff claims that the cause of action is saved by General Statutes § 52–592, the accidental failure of suit statute.   The court heard oral argument on the motion at short calendar on April 23, 2012.

In support of their motion for summary judgment, the defendants attached a copy of the plaintiff's writ, summons and complaint dated December 13, 2011 (Def. Exhibit A) and a copy of the defendants' answer and special defense dated February 7, 2012 (Def. Exhibit B).  The plaintiff attached to its opposition to the motion a copy of the writ, summons and complaint dated August 26, 2011 (PL. Exhibit A);  a copy of the cover letter dated August 26, 2011 attached to the writ, summons and complaint which plaintiff's counsel attests was hand delivered to State Marshal Tommy Russo for service (PL. Exhibits B and D);  State Marshall Andrew Esposito's return in which he attests that on August 29, 2011, he served the defendants by leaving a copy of the writ, summons and complaint at their usual place of abode (PL. Exhibit C);  and an affidavit from Attorney Michael Carreira, an attorney employed by the law firm of plaintiff's counsel.  (PL. Exhibit D.)

A review of the evidence attached to the parties' respective pleadings establishes the following facts.   The automobile accident giving rise to this lawsuit occurred on September 1, 2009.   On August 26, 2011 counsel for the plaintiff prepared a writ, summons and complaint dated August 26, 2011 (PL. Exhibit A).   Said process was given to State Marshall Tommy Russo on August 26, 2011 (PL. Exhibit B).  At some point Marshall Russo gave the writ, summons and complaint to State Marshall Andrew Esposito who furnished a return which states that on August 29, 2011, three days before the expiration of the statute of limitations, he made abode service upon the defendants, Kenneth Thomas and Donna Thomas (PL. Exhibits C, D).  However, Marshall Esposito misplaced the writ, summons and complaint and was unable to deliver it to plaintiff's counsel so it could be returned to court.  (PL. Exhibit D).

On December 29, 2011, the plaintiff commenced another action by writ, summons and complaint dated December 13, 2011.   The Marshall's return of service states that abode service was made on December 29, 2011 on both defendants.   The complaint alleges the same facts as set forth in the August 26, 2011 complaint and further alleges that the plaintiff brings this action pursuant to General Statutes § 52–592(a).

DISCUSSION

The defendants claim in their motion for summary judgment that General Statutes § 52–584 is a bar to this action and do not address in their brief the applicability of § 52–592(a) as claimed by the plaintiff.¹

“Practice Book § 17–49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted 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.”  (Internal quotation marks omitted.)  Brooks v. Sweeney, 299 Conn. 196, 210, 9 A.3d 347 (2010).  “In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist.”  (Internal quotation marks omitted.)  Maltas v. Maltas, 298 Conn. 354, 365, 2 A.3d 902 (2010).

“In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact.   The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law.   The courts hold the movant to a strict standard.   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 ․ As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ․ When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ․ Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue ․ It is not enough ․ for the opposing party merely to assert the existence of such a disputed issue.   Mere assertions of fact ․ are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17–45].”  (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11, 938 A.2d 576 (2008).   Summary Judgment may be granted where the plaintiff's claim is barred by the applicable 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).

General Statutes § 52–584 provides in relevant part:  “No action to recover damages for injury to the person ․ caused by negligence ․ 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, and except that no such action may be brought more than three years from the date of the act or omission complained of ․”

General Statutes § 52–592 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 of insufficient service or return of the writ due to unavoidable accident ․ the plaintiff ․ may commence a new action ․ for the same cause of action at any time within the one year after the determination of the original action or after the reversal of the judgment.”   The issue presented by the defendants' motion is whether the plaintiff's diligent, good faith abode service of process of the writ, summons and complaint on the defendants on August 29, 2011, constitutes the commencement of an action under the accidental failure of suit statute.   This court concludes that it does.

The insufficiency of service is due to the plaintiff's counsel's inability to file the return of service with the court within the statute of limitations period because neither State Marshall Andrew Esposito nor State Marshall Thomas Russo provided the plaintiff's attorney with a return of the process papers, other than the Marshall's return for the August 29, 2011 service, until on or around December 13, 2011.

The defendants' argue in support of their motion for summary judgment that the applicable statute of limitations in this matter is the two-year statute of limitations for negligence actions set forth in § 52–584, and, that there is no issue of material fact that the plaintiff commenced this action after the required time limitation.

The plaintiff counters that this action was commenced within the statute of limitations because Marshall Esposito did make abode service upon the defendant's on August 29, 2011 as evidenced in his return (PL. Exhibit C).

“The general rule putting the burden of proof on the defendant as to jurisdictional issues raised is based on the presumption of truth of the matters stated in the officer's return.   When jurisdiction is based on personal or abode service, the matters stated in the return, if true, confer jurisdiction unless sufficient evidence is introduced to prove otherwise.”   (Citation omitted;  internal quotation marks omitted.)  Tax Collector v. Stettinger, 79 Conn.App. 823, 825 832 A.2d 75 (2003).   The defendant has not submitted any evidence or raised any arguments in opposition to the statement in Marshall Esposito's return (PL. Exhibit C) that process was served on the defendants at their usual place of abode on August 29, 2011.

The plaintiff further argues that his inability to return the service to court was the fault of Marshall Esposito when he misplaced the writ, summons and complaint and did not return the service to plaintiff's counsel until December 13, 2011.   The plaintiff argues that Marshall Esposito's abode service upon the defendants on August 29, 2011, three days before the statute of limitations ran, “commenced” the initial action pursuant to § 52–592 and therefore the action is saved.   The defendants do not address the applicability of § 52–592.

The applicability of General Statutes § 52–592 was recently addressed by Judge Martin in Trehern v. Vars, 2012 Ct.Sup. 737 (February 16, 2012) [53 Conn. L. Rptr. 544], in which he very cogently discusses when § 52–592 should be applied:  “The court will begin by briefly discussing the relevant statute of limitations.   The parties do not dispute that the applicable statute of limitations is General Statutes § 52–584, which provides in relevant part:  ‘No action to recover damages for injury to the person, or to ․ personal property, caused by negligence ․ shall be brought but within two years from the date when the injury is first sustained ․’ ‘[T]here is no substantive distinction between the terms “bringing” an action and “commencing” an action.’  Rocco v. Garrison, 268 Conn. 541, 549, 848 A.2d 352 (2004).   Generally speaking, ‘under the law of our state, an action is commenced ․ when [the writ] is served upon the defendant.’  (Internal quotation marks omitted.)  Id.

“General Statutes § 52–592 provides that so long as an initial action ‘commenced’ within the statute of limitations period, a new action may be brought within one year of the determination or dismissal of the initial action if the initial action failed to be tried for any of the described reasons.   Section 52–592 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 of insufficient service or return of the writ due to unavoidable accident or the default or neglect of the officer to whom it was committed ․ the plaintiff ․ may commence a new action ․ for the same cause at any time within one year after the determination of the original action ․’

“Section 52–592 ‘is remedial and is to be liberally interpreted.’  Ross Realty Corp. v. Surkis, 163 Conn. 388, 393, 311 A.2d 74 (1972).   It is ‘designed to insure to the diligent suitor the right to a hearing in court till he reaches a judgment on the merits ․ The important consideration is that by invoking judicial aid, a litigant gives timely notice to his adversary of a present purpose to maintain his rights before the courts.’  (Internal quotation marks omitted.)  Isaac v. Mount Sinai Hospital, 210 Conn. 721, 733, 557 A.2d 116 (1989), quoting Gaines v. New York, 215 N.Y. 533, 539, 109 N.E. 594 (1915) (Cardozo, J.).

“Our Supreme Court has determined that ‘the term “commenced,” as used in § 52–592 to describe an initial action that “has failed ․ to be tried on its merits because of insufficient service” ․ cannot be construed to mean good, complete and sufficient service of process ․’ (Citation omitted.)  Rocco v. Garrison, supra, 268 Conn. 551.   In Rocco, the plaintiffs filed a complaint with the clerk of the United States District Court for the District of Connecticut and then their counsel followed the procedure established by rule 4(d)(2) of the Federal Rules of Civil Procedure.  Rocco v. Garrison, supra, 544–45.   Under rule 4(d)(2), a defendant who receives notice in the manner prescribed has a duty to waive formal service.  Rocco v. Garrison, supra, 545–46.   In accordance with rule 4(d)(2), the plaintiffs' counsel sent several items to the defendant's home address, ‘including the summons and complaint, two copies of a notice and request for waiver of formal service and an envelope with sufficient postage for return of the signed waiver.’  Rocco v. Garrison, supra, 546.   The defendant received these items, but did not sign and return the waiver, and the statute of limitations expired before the plaintiffs' counsel could effect formal service.  Id. The District Court granted the defendant's motion for summary judgment because formal service was not made upon the defendant within the statute of limitations.  Id. The plaintiffs subsequently commenced a new action in state court pursuant to § 52–592.  Id. Our Supreme Court held that although the plaintiffs' counsel never made valid formal service within the limitations period, the initial action ‘was “commenced,” for purposes of [§ 52–592], when the defendant received actual notice of the action within the time period prescribed by the statute of limitations.’  Rocco v. Garrison, supra, 552.

“A decision of our Appellate Court, Davis v. Family Dollar Store, 78 Conn.App. 235, 826 A.2d 262 (2003), appeal dismissed, 271 Conn. 655, 859 A.2d 25 (2004), is often read together with Rocco by our trial courts.   See, e.g., Hird v. Iskra, Superior Court;  judicial district of New Britain, Docket No. CV 03 0520308 (December 14, 2004, Berger, J.) (38 Conn. L. Rptr. 410, 411).   Several of these courts have noted that our Supreme Court decided Rocco in the same year that it dismissed the Davis appeal on the grounds that certification was improvidently granted.   See, e.g., Illescas v. Needham, Superior Court, judicial district of Hartford, Docket No. CV 04 4005457 (August 10, 2006, Elgo, J.) (41 Conn. L. Rptr. 806, 807).

“In Davis, the Appellate Court held that delivery of process to a sheriff for service does not commence an action for § 52–592 purposes.  Davis v. Family Dollar Store, supra, 78 Conn.App. 240–41.   In Davis, three days before the statute of limitations expired, the plaintiff delivered a writ of summons and complaint to a sheriff for service on the defendant.  Id., 236.   The sheriff never made service, however, and returned the writ of summons and complaint to the plaintiff more than six months later.  Id. The plaintiff then commenced a new action pursuant to § 52–592.  Id. The Appellate Court stated that ‘the plaintiff did not offer any authority to support the proposition that the delivery of process to a sheriff constituted commencement of an “action” within the meaning of § 52–592.   Without the existence of a prior action, the plaintiff cannot invoke the protection of § 52–592.’   Id., 240.   The court held that the initial action had not commenced because the writ of summons and complaint were never served on the defendant.   (Internal quotation marks omitted.)  Id.

“Several decisions of the Superior Court have construed Rocco and Davis as together standing for the proposition that improper or insufficient service is different from no service at all ․ If the statutory time has lapsed after service was previously made, albeit improperly, an action has commenced for purposes of § 52–592.   In contrast if service was not made by the statutory period, irrespective of whether service of process was timely delivered to a marshal and even attempted, the action has not commenced.'  (Citation omitted.)  Illescas v. Needham, supra, 41 Conn. L. Rptr. 808.   See also Drwiega v. Aferzon, Superior Court, judicial district of New Britain, Docket No. CV 05 4002977 (October 31, 2007, Shapiro, J.);   St. John v. Westfield, LLC, Superior Court, judicial district of New Haven, Docket No. CV 10 6008585 (August 17, 2010, Corradino, J.T.R.) (50 Conn. L. Rptr. 486).

“The court in Jimenez v. DeRosa, Superior Court, judicial district of New Haven, Docket No. CV 07 5013800 (November 4, 2009, Alander, J.) (48 Conn. L. Rptr. 839), viewed Rocco and Davis somewhat differently:  ‘Rocco does not hold that only invalid service of process which actually reaches the defendant qualifies as commencement of the action under the savings statute and Davis does not hold that all unsuccessful attempts to actually serve process on a defendant fail to constitute the commencement [of an action] for purposes of the savings statute.   While an unsuccessful attempt to serve process on a defendant where the defendant receives timely actual notice of the lawsuit constitutes commencement of the action under § 52–592, Rocco v. Garrison, supra, and mere delivery of process to a marshal with no attempt at service does not, Davis v. Family Dollar Store, supra, these situations do not define the universe of commencing an action for purposes of the savings statute.’  (Emphasis in original.)  Jimenez v. DeRosa, supra, 48 Conn. L. Rptr. 841.

“The Jimenez court denied the defendant's motion for summary judgment.  Id. At the time of service in Jimenez, the defendant no longer resided at the address at which the marshal left process.  Id. Nonetheless, ‘the undisputed evidence [established] that the plaintiffs made a diligent, good faith effort to serve process on the defendant by leaving a copy of the summons and complaint at the address provided by the defendant at the scene of the accident and listed as the defendant's address in various government records.’  Id.” Trehern v. Vars, supra, 737–F–737–J.

In the present case, the defendants have met their initial burden of presenting evidence to support judgment in its favor.   Namely, the undisputed fact that the plaintiff's injury occurred on September 1, 2009, and, based on the evidence submitted by the defendant, the action was not commenced until December 29, 2011 well beyond the September 1, 2011 limitation period.   However, the plaintiff has submitted evidence that § 52–592 applies because the initial action was commenced prior to the running of the statute of limitations when Marshall Esposito served the defendants on August 29, 2011.   As previously noted the defendant has neither responded to the plaintiff's argument that § 52–592 applies nor has the defendant refuted any of plaintiff's evidence that the action was commenced on August 29, 2011.   Accordingly, since the action was commenced on August 29, 2011, when Marshall Esposito served the defendants, three days before the statute of limitations was due to expire, § 52–592 is applicable and the defendants' motion for summary judgment is therefore denied.

Wilson, J.

FOOTNOTES

FN1. Counsel for the defendant glossed over the application of § 52–592 at oral argument only after the court made inquiry into its applicability..  FN1. Counsel for the defendant glossed over the application of § 52–592 at oral argument only after the court made inquiry into its applicability.

Wilson, Robin L., J.