Robert Taylor v. Kevin Pervis et al. (2013)

MEMORANDUM OF DECISION

The defendant has filed a motion to dismiss this action.

This case relates to an accident which happened on April 8, 2002.   The suit was brought by the plaintiff who was a passenger in a vehicle allegedly owned by Acme Rent–A–Car.   The original action was dismissed on August 29, 2006, and this suit was commenced on August 13, 2007 against American Car and Truck Rental, Inc. The plaintiff obtained a judgment against American Car and Truck Rental, Inc. in the amount of $325,000.00 on April 22, 2008.

The defendant claims that Acme Rent–A–Car was the named defendant in the action brought in 2002, and the named defendant in the new action was commenced against American Car and Truck Rental, Inc, and it had not been properly served in the prior suit.

At the time of the accident on April 8, 2002 both entities were located at the same address of 1057 Whalley Avenue in New Haven, Connecticut.   The return of service of the original action was at the address of both entities.

A judgment has been entered against the defendant American Car and Truck Rental, Inc. for the sum of $325,000.00 on April 22, 2008.   The defendant has filed a motion to open, but it was denied.

The record in this case shows that plaintiff pursuant to Connecticut General Statute Section 52–592 in 1987 commenced this action under this statute for accidental failure of suit.   In compliance with that statute the plaintiff commenced the current action against the American Car and Truck Rental, Inc. The plaintiff then obtained a judgment of $325,000 on April 22, 2008.   A judgment was then found to be proper based upon the accidental failure of suit statute in the case of Coughlin v. City of Waterbury, 61 Conn.App. 310, 314 (2001).   A change of parties does not preclude a difference in the name and the action is identical to the original action.  Isaac v. Mount Sinai Hospital, 210 Conn. 731, 733 (1989).

The present claim for a motion to dismiss is based upon the claim that proper service was not made in the original suit on April 21, 2004.

On October 8, 2013 the evidence presented for the plaintiff was the testimony of Mark White regarding service of process on defendants in the first suit.   On April 12, 2004 he served Acme Rent–A–Car by serving Carol Paquette who identified herself as the Office Manager for Acme Rent–A–Car which was operating its business at 1057 Whalley Avenue, New Haven, Connecticut.   She was sitting at a desk and she advised the Marshall she was authorized to accept service of process for this defendant.   She also identified herself as the person in charge of the office and principal place of business at the time of service.

After that action was dismissed the plaintiff instituted the present action on July 30, 2007 pursuant to Connecticut General Statute Section 52–592.   This action was brought pursuant to the accident failure of suit statute.   Service in this suit was made by the Marshall on August 3, 2007.   Service in this action was served on Paul Kozlowski as agent for service of American Car and Truck Rental, Inc. with service at his usual place of abode.

The defendant Paul Kozlowski testified Carol Paquette did not have a right to accept service on April 12, 2004, and she was only a bookkeeper at 1057 Whalley Avenue, New Haven, Connecticut.   However she was not produced as a witness.   This therefore, created an issue of credibility regarding the Marshall's testimony and that of Mr. Kozlowski.

The defendant has again moved to dismiss the judgment obtained by the plaintiff and this court concludes that pursuant to Practice Book Section 10–31 that defendant in filing an appearance on September 11, 2007 the issue of jurisdiction was not timely raised until August 17, 2011 which constituted a waiver of defendant's claim regarding proper jurisdiction.

For the foregoing reason the defendant's motion to dismiss is denied, and the judgment for the plaintiff dated April 22, 2008 is affirmed.

Howard F. Zoarski

Judge Trial Referee

Zoarski, Howard F., J.T.R.