Frank Ahern v. Paul J. Chu, Administrator of the Estate of James Chu (2013)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (# 130)

This case arises out of a motor vehicle accident that occurred on September 15, 2007.   The plaintiff, Frank Ahern, by way of writ, summons and complaint commenced this action against the defendant, James Chu ¹ on September 16, 2009.   The complaint contains two counts.   Count one sounds in negligence and count two sounds in statutory recklessness pursuant to General Statutes § 14–295.   The complaint is dated September 11, 2009 and was filed in court on October 13, 2009.   The plaintiff filed his return of service on October 13, 2009.   The return date is October 20, 2009.   Pursuant to the officer's return of service filed with the court on October 13, 2009, the State Marshal did not serve the defendant until September 16, 2009 which is more than two years after the date of the alleged accident.   On January 7, 2013, the plaintiff filed a revised complaint which is the operative complaint.

On January 25, 2013, the defendant filed an answer to the plaintiff's revised complaint and raised two special defenses.   The first special defense alleges contributory negligence and the second special defense alleges that the plaintiff failed to serve process on the defendant within two years of the date of the accident and, therefore the action is barred by General Statutes § 52–584, the applicable statute of limitations.   On January 25, 2013, the defendant filed a motion for summary judgment on grounds that the plaintiff's cause of action is barred by the applicable statute of limitations.   In support of his motion for summary judgment, the defendant filed a memorandum of law and attached Exhibit A which is the Marshal's return of service dated September 16, 2009 and Exhibit B which is case law in support of the motion.

The plaintiff filed an objection to the motion on May 10, 2013 and a memorandum of law in opposition.   In addition, the plaintiff filed exhibits in support of his objection.   Exhibit A is the Marshal's Supplemental Return dated September 17, 2009 and Exhibit B is an affidavit of Attorney Alfred Cronk, the plaintiff's prior counsel.   The plaintiff argues that the writ, summons and complaint were delivered to a state marshal on September 11, 2009, prior to the expiration of the statute of limitations and was served within the thirty days after delivery to the marshal, as required in General Statutes § 52–593a, and therefore, the defendant was timely served.   The plaintiff argues that the defendant's motion for summary judgment should therefore be denied.   The defendant's motion for summary judgment was scheduled as take papers on the court's June 24, 2013 short calendar.²

DISCUSSION

“Summary judgment is a method of resolving litigation when 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.”  Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).  “[A] party opposing a summary judgment motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact ․ [T]ypically [d]emonstrating a genuine issue requires a showing of evidentiary facts or substantial evidence outside the pleadings from which material facts alleged in the pleadings can be warrantably inferred.”   (Citations omitted;  internal quotation marks omitted.)  Mott v. Wal–Mart Stores East, LP, 139 Conn.App. 618, 624–26, 57 A.3d 391 (2012).  “An important exception exists, however, to the general rule that a party opposing summary judgment must provide evidentiary support for its opposition, and that exception has been articulated in our jurisprudence with less frequency than has the general rule.   On a motion by [the] defendant for summary judgment the burden is on [the] defendant to negate each claim as framed by the complaint ․ [I]t is only [o]nce [the] defendant's burden in establishing his entitlement to summary judgment is met [that] the burden shifts to [the] plaintiff to show that a genuine issue of fact exists justifying a trial ․ Accordingly, [w]hen 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.”  (Internal quotation marks omitted.)  Id., 626–27.   Moreover, “[a] motion for summary judgment is properly granted if it 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.)  Id., 632.

“The question of whether a party's claim is barred by the statute of limitations is a question of law”;  (internal quotation marks omitted) Watts v. Chittenden, 301 Conn. 575, 582, 22 A.3d 1214 (2011);  and “[s]ummary 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).   “[S]ummary judgment is proper [on this ground] where the ․ [evidence] do[es] not set forth circumstances [that] ․ 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);  and “material facts concerning the statute of limitations [a]re not in dispute ․” Burns v. Hartford Hospital, 192 Conn. 451, 452, 472 A.2d 1257 (1984).

The defendant argues that the plaintiff's cause of action is barred by the applicable statute of limitations, General Statutes § 52–584, which 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 ․ The defendant concedes that General Statutes § 52–593a can, in certain instances, provide additional time within which to serve legal process beyond the statutory period, however, the defendant argues that the statutory extension is inapplicable here because the statutory conditions precedent have not been met.  General Statutes § 52–593a provides in relevant part:  “(a) ․ [A] cause or right of action shall not be lost because of the passage of the time limited by law within which the action may be brought, if the process to be served is personally delivered to a state marshal ․ within such time and the process is served, as provided by law, within thirty days of the delivery. (b) In any such case, the officer making service shall endorse under oath on such officer's return the date of delivery of the process to such officer for service in accordance with this section.”

The defendant argues that § 52–593a is inapplicable here because the marshal's return which the defendant has submitted as Exhibit A, does not contain an affirmation by the marshal indicating the date of delivery of the process to the marshal for service in accordance with § 52–593a(a) and (b).

The marshal's return submitted in support of the defendant's motion, states that on September 16, 2009 he, “[t]hen and there by virtue hereof, served a true and attest copy of the original WRIT, SUMMONS and COMPLAINT, served at the usual place of abode of the within name defendant(s) JAMES Chu, 10 Gail Drive, North Haven, CT, with my doings hereon endorsed.”   Defendant's Exhibit A. The defendant is correct that the return does not state the date process was delivered to him for service or that the date of delivery was within the thirty-day grace period set forth in § 52–593a.   According to the marshal's return submitted by the defendant, service was not made on the defendant until September 16, 2009 which is beyond the two-year time limitation set forth in § 52–584.   The return is silent on the date process was delivered to the marshal.   The defendant has therefore met his initial burden of demonstrating that no genuine issue of fact exists that the plaintiff failed to serve him within the two-year limitation period.   The burden thus shifts to the plaintiff to raise an issue of fact as to whether he complied with the statute of limitations.

In his objection, the plaintiff argues that the complaint was delivered to a state marshal for service prior to the expiration of the statute of limitations and was served within the thirty-day grace period set forth in § 52–593a.   The plaintiff has submitted evidence to demonstrate that in fact the writ, summons and complaint was personally delivered to a state marshal, Willard Allen, Jr. on September 11, 2009, and that marshal Allen served the writ, summons and complaint at the defendant's abode on September 16, 2009, and on the Department of Motor Vehicles on September 17, 2009.

Plaintiff's Exhibit A attached to his objection is a Supplemental Return dated September 17, 2009, in which the marshal attests that “[o]n September 11, 2009, having taken possession of the Writ Summons and Complaint from attorney and at his direction, Then and there, I made diligent search for the defendant JAMES CHU, after having served the address as appeared on file at the Department of Commissioner of Motor Vehicles of State of Connecticut and did make service on September 16, 2009 at the place of abode of the said defendant and I did make due service by leaving a true and attested copy with my doings thereon September 17, 2009 at the Office of the Commissioner of Motor Vehicles of the State of Connecticut.”   Plaintiff's Ex. A. The plaintiff also submitted the affidavit of plaintiff's prior attorney, Alfred Cronk who attests that the “Writ, Summons and Complaint were placed into the Marshal's hands on or before September 14, 2009.   In fact my records and notes indicate that I placed the Writ, Summons and Complaint into the Marshal's hands on September 11, 2009, pursuant to Connecticut General Statutes § 52–593 ․ Pursuant to Connecticut General Statutes § 52–593, I placed the Writ, Summons and Complaint into the Marshal's hands prior to the two year statute of limitations, thereby tolling the statute for up to thirty days.”   Plaintiff's Ex. B.

The plaintiff has submitted evidence which demonstrates that process was delivered to a marshal before the expiration of the statute of limitations, and that service was made within thirty days after delivery to the marshal as required under § 52–593a.   Accordingly, the plaintiff has raised a genuine issue of material fact as to whether the action was commenced within the statute of limitations period.

CONCLUSION

For the foregoing reasons, the defendant's motion for summary judgment is denied.

Wilson, J.

FOOTNOTES

FN1. The defendant, James Chu died on or about November 21, 2009.   The plaintiff, Frank Ahern filed a motion to substitute Paul Chu as party defendant as administrator of the estate of James Chu on January 14, 2013.   The court (Robinson, J.) granted this motion on February 11, 2013..  FN1. The defendant, James Chu died on or about November 21, 2009.   The plaintiff, Frank Ahern filed a motion to substitute Paul Chu as party defendant as administrator of the estate of James Chu on January 14, 2013.   The court (Robinson, J.) granted this motion on February 11, 2013.

FN2. On May 17, 2013, the plaintiff filed a motion for summary judgment on the defendant's second special defense which is the statute of limitations special defense.   The plaintiff's motion for summary judgment (# 130) was not before this court and therefore the court will not address that issue, although, resolution of the defendant's motion for summary judgment (# 114) may dispose of the plaintiff's motion..  FN2. On May 17, 2013, the plaintiff filed a motion for summary judgment on the defendant's second special defense which is the statute of limitations special defense.   The plaintiff's motion for summary judgment (# 130) was not before this court and therefore the court will not address that issue, although, resolution of the defendant's motion for summary judgment (# 114) may dispose of the plaintiff's motion.

Wilson, Robin L., J.