Gregory Leeber v. Sarah Shaw et al. (2013)

MEMORANDUM OF DECISION

The plaintiff instituted the present action seeking to recover monetary damages for personal injuries sustained in a motor vehicle accident which took place in August of 2004.   The complaint asserts that the claim is brought pursuant to the provisions of the accidental failure of suit statute, General Statutes § 52–592.   The parties agree that, unless the provisions of the statute are applicable, the claims are barred by the applicable statutes of limitation.   In the first action initiated by the plaintiff began in 2006 and was subsequently dismissed with an entry of a non-suit.   Following the dismissal, the plaintiff instituted the second action in July of 2011.

The first action initiated on behalf of the plaintiff was begun in 2006.   The plaintiff had several different attorneys involved in the prosecution of that case and, in June of 2010, the final attorney filed a Motion to Withdraw his appearance.   At the time of the filing the motion to withdraw, the counsel sent a notice to the plaintiff advising him that “you should either obtain another attorney or file an appearance on your own behalf with the Court.”   The notice also stated “if you do not obtain either new counsel or file an appearance on your own behalf, you will not receive notice of court proceedings in the case and a non-suit or dismissal judgment may enter against you.”   On July 19, a letter was filed in Court from the plaintiff to his attorney stating that he had received the motion to withdraw the appearance and had no objection to it being granted.   On July 19, 2010, the court granted the Motion to Withdraw Appearance.

On September 22, 2010, counsel of the defendant filed a motion for judgment of non-suit for the failure of the plaintiff to file an appearance.   That motion was granted by the court on October 14, 2010.   In February of 2011, present counsel for the plaintiff filed a motion to open the judgment of non-suit and a motion for re-argument.   The motions to reopen and to reargue were denied by the court on March 7, 2011.   In denying the motion, Judge Bellis noted that the non-suit was granted for failure to appear in the action and not for the failure to attend any particular event.   No appeal was taken by the plaintiff with respect to the granting of the judgment of non-suit nor from the motion to reopen or the motion to reargue.

The plaintiff testified that he received and read the motion to withdraw the appearance and the accompanying notice but did not understand it.   However, at his deposition taken in August of 2012, he testified that he did not read the documents.   The plaintiff testified that he did not know what a pro-se appearance was, he thought appearance meant that he actually had to appear physically in court;  and that he did not know what a non-suit was.   He further testified that his main concern was obtaining a new attorney to represent him and that he contacted the three attorneys who had represented him in the past on the first lawsuit.   He testified that he also contacted four other attorneys.   None of them would take his case.   The plaintiff also testified that he had other attorneys.   None of them would take his case.   The plaintiff also testified that he had substantial medical bills and that he already had one back operation and that two neck operations had been recommended by his physicians.   He was also aware that the defendants claimed neither the past operation nor the two recommended future operations were causally related to the motor vehicle accident.   The plaintiff also testified that he was advised to enter an appearance but did not understand what that meant nor did he ask any of the attorneys.

General Statutes § 52–592 provides as follows:

Sec. 52–592.  Accidental failure of suit;  allowance of new action. (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, or because the action has been dismissed for want of jurisdiction, or the action has been otherwise avoided or defeated by the death of a party or for any matter of form;  or if, in any such action after a verdict for the plaintiff, the judgment has been set aside, or if a judgment of nonsuit has been rendered or a judgment for the plaintiff reversed, the plaintiff, or, if the plaintiff is dead and the action by law survives, his executor or administrator, may commence a new action, except as provided in subsection (b) of this section, for the same cause at any time within one year after the determination of the original action or after the reversal of the judgment.

The accidental failure of suit statute (General Statutes § 52–592) is remedial in nature and therefore warrants a broad construction.  Ruddock v. Burrows, 243 Conn. 569, 575 (1998).   As such, the court's focus is conduct other than a mistake, inadvertence or excusable neglect.  Supra at 577.   The statute is applicable to those cases involving mistake, inadvertence or excusable neglect.   See Skinner v. Dorlgen, 99 Conn.App. 540, 558 (2007).

The plaintiff was specifically advised in the notice provided by his counsel that he should protect himself in various ways either by new counsel or by filing an appearance on his own behalf.   Even if the plaintiff did not have knowledge of the meaning of the various words, he certainly had access to the attorneys who could have specifically informed him of their meaning.   The notice provided to him by his counsel at the time of the filing of the Motion to Withdraw Appearance referred to the possibility of a “dismissal.”   Such a word does not require a great deal of understanding to know that something bad might happen.   When the court denied the plaintiff's motion to open the non-suit it specifically noted that the non-suit was granted for failure to file an appearance and not merely a failure to show up for some specific event.   At the time the non-suit was granted (9–22–10), the accident claimed to have caused injuries had taken place over six years previously and there was still no one who the court could contact with respect to the case since no appearance had been filed.

The court therefore finds that the facts do not justify a conclusion that the case was failed to be tried on its merits because of a mistake, inadvertence, excusable neglect or because of a matter of form.   The accidental failure of suit statute is not applicable to the facts of this case.

Accordingly, judgment may enter in favor of the defendants.

RUSH, J.T.R.

Rush, William B., J.T.R.