Joan Mazzaia Executrix to the Estate of Donald Massaia v. A.O. Smith Corp. et al. (2013)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (# 398.00)

FACTS

This action arises out of the alleged exposure of the decedent, Donald Mazzaia, to various asbestos-containing products while he worked in the United States Navy during the years 1959 to 1963.   The plaintiff, Joan Mazzaia, executrix to the estate of Donald Mazzaia, alleges that the decedent also suffered exposure from 1963 to 1979 while working in various capacities at General Dynamics/Electric Boat and Pfizer Corp. The operative complaint, the plaintiff's November 13, 2012 sixth amended complaint, alleges that the decedent was exposed to, and inhaled and/or ingested, asbestos fibers and particles from various asbestos-containing products of the defendant(s) which contributed to the decedent's mesothelioma and other asbestos-related pathologies.   The plaintiff alleges that multiple defendants were responsible for the decedent's injuries.

Previously, this court granted a January 9, 2012 motion for summary judgment of the moving defendant, Skansa USA Building, Inc., as to count one (product liability);  count two (loss of consortium);  and count five (wrongful death), on the basis that the defendant was not a product seller for purposes of the Connecticut Product Liability Act. See Mazzaia v. A.O. Smith Corp., Superior Court, judicial district of Fairfield, Docket No. CV–11–5029478–S (November 29, 2012, Bellis, J.).¹  Accordingly, two counts remain:  count three (grossly negligent, willful, wanton conduct predicated on failure to publish data establishing that asbestos harmful);  and count four (negligence claim referencing § 52–577c).   The defendant now moves for summary judgment as to the third count on the basis that it is barred by a statute of limitations.

DISCUSSION

Summary judgment may be raised on the ground of statute of limitations 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).   Further, “[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).  “The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law.”  (Internal quotation marks omitted.)  Grimm v. Fox, 303 Conn. 322, 329, 33 A.3d 205 (2012).

Count three alleges that the defendants, since 1929, possessed medical and scientific data, as well as studies and reports establishing that asbestos and asbestos-containing products were hazardous to the health and safety of the plaintiff and to all humans exposed to such products.   The plaintiff further alleges that the defendants failed to acknowledge or publish such information, and that said “acts and omissions thus constitute misconduct that is grossly negligent, willful, wanton, malicious and or outrageous.”   On January 11, 2013, the defendant filed a motion for summary judgment on the ground that count three is barred by the statute of limitations contained in either General Statutes § 52–555 or § 52–577.   In her January 24, 2013 memorandum in opposition, the plaintiff counters that the court should deny the defendant's motion because count three alleges facts to support a claim for punitive damages.   In its reply memorandum, filed on January 29, 2013, the defendant responds that it makes no difference what claim the plaintiff attempts to assert in her third count—negligence, intentional tort, recklessness or wrongful death, it is time-barred under “General Statutes § 52–555, § 52–577 and/or § 52–584.”

The court hereby grants the defendant's motion for summary judgment on the ground that count three is barred by the statute of limitation contained in General Statutes § 52–584.  General Statutes § 52–584 provides, in part, “[n]o action to recover damages for injury to the person ․ caused by ․ reckless or wanton misconduct ․ 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 ․” The acts and omissions contained in count three are alleged to have occurred in the 1920s, the 1930s, 1940s, 1950s and the 1960s.

CONCLUSION

Accordingly, for the reasons discussed, the court grants the defendant's motion for summary judgment as to count three of the plaintiff's sixth amended complaint.

BELLIS, J.

FOOTNOTES

FN1. In addition, on July 11, 2012, the defendant filed a supplemental motion for summary judgment as to count four, which alleges negligence and which references General Statutes § 52–577c(a).  (Docket Item No. 352.)   The defendant moved on the basis that count four of the plaintiff's complaint was barred by various statutes of limitation and that the plaintiff lacked the capacity to sue in Connecticut.   The court denied the motion because there were genuine issues of material fact with respect to the applicability of § 52–577c as referenced in count four of the complaint.   See Memorandum of Decision, Mazzaia v. A.O. Smith Corp., Superior Court judicial district of Fairfield, Docket No. CV–11–5029478–S (December 26, 2012, Bellis, J.)..  FN1. In addition, on July 11, 2012, the defendant filed a supplemental motion for summary judgment as to count four, which alleges negligence and which references General Statutes § 52–577c(a).  (Docket Item No. 352.)   The defendant moved on the basis that count four of the plaintiff's complaint was barred by various statutes of limitation and that the plaintiff lacked the capacity to sue in Connecticut.   The court denied the motion because there were genuine issues of material fact with respect to the applicability of § 52–577c as referenced in count four of the complaint.   See Memorandum of Decision, Mazzaia v. A.O. Smith Corp., Superior Court judicial district of Fairfield, Docket No. CV–11–5029478–S (December 26, 2012, Bellis, J.).

Bellis, Barbara N., J.