Motor Vehicle Law: Connecticut Supreme Court held that a defendant must receive the summons and complaint in order for a plaintiff to commence an action under Saving Statute

On appeal in this case, the plaintiff claims that the Appellate Court incorrectly concluded that the action was not “commenced” for purposes of Connecticut General Statutes § 52-592(a) on the ground that the defendant did not receive a copy of the summons and complaint without the time period prescribed by the statute of limitations. This case arose out of a motor vehicle accident between the plaintiff and defendant. On the date of the accident, the defendant resided at the address listed on her driver’s license that she presented to the police after the accident occurred. Although the plaintiff remained at this residence for approximately eighteen months after the accident, she became hospitalized on December 19, 2017. Immediately thereafter, the defendant moved to a nursing home in Windsor. The defendant was then relocated to another facility in Rhode Island. She never again resided at the property listed on her drivers license on the day of the accident. However, on June 4, 2018, the property listed on the defendant driver’s license was sold and the deed was recorded on June 11, 2018. Several days after the deed was recorded, the plaintiff attempted to commence a civil action against the defendant in connection with the motor vehicle accident by delivering the writ, summons and complaint to a Connecticut state marshal with direction to serve the defendant. The marshal was directed to serve the plaintiff at the property.

Unbeknownst to the plaintiff and his attorney, the defendant no longer resided at this property. Nevertheless, on June 18, 2018, the marshal left a copy of the summons and complaint at the property. The property appeared to be inhabited and there were no signs that it had been abandoned or recently sold. At that time, the website of the assessor’s office still listed the defendant as the owner of the property and the property was the defendant’s last known address on file with the Department of Motor Vehicles. At some point prior to July 3, 2018, the plaintiff’s attorney notified the defendant’s automobile insurance company about the pending action and forwarded a copy of the summons and complaint. On July 3, 2018, an attorney appointed by the defendant’s automobile insurance company filed an appearance on the defendant’s behalf. Thereafter, the defendant’s attorney filed interrogatories, requests for production, and a motion for permission to file supplemental discovery. The defendant’s power of attorney learned of the matter on July 13, 2018, however, she did not receive a copy of the summons or complaint until July 17, 2018, which, importantly, was at least two days beyond the time permitted by law. The defendant filed a motion to dismiss the complaint on the ground that service of process was not sufficient and therefore, the trial court lacked personal jurisdiction over her. The trial court granted the motion.

The plaintiff then filed the present action pursuant to Connecticut General Statutes § 52-592, known as the “saving statute” or the “accidental failure of suit statute.” In the defendant’s answer and special defenses, she asserted that the plaintiff’s action was barred by the statute of limitations. The defendant then filed a motion for summary judgment which was granted by the trial court on the grounds that the undisputed facts show that the defendant did not receive effective, timely notice of the plaintiff’s underlying action. The plaintiff appealed and the Appellate Court reasoned that because the plaintiff failed to provide any evidence that the defendant herself or her power of attorney had received the summons and complaint within the applicable statute period, there was no genuine issue of material fact as to whether the defendant had actual or effective notice for purposes of § 52-592. The Appellate Court therefore affirmed the trial court’s decision. The plaintiff filed a petition for certification to appeal, which the Supreme Court granted to answer whether the Appellate Court correctly concluded that the plaintiff’s failed action did not come within § 52-592 because it was never ‘commenced’ within the meaning of that statute.

The Court stated that § 52-592 is “designed to [e]nsure to the diligent suitor the right to a hearing in court [until] he [or she] reaches a judgment on the merits. … The important consideration is that by invoking judicial aid, a litigant gives timely notice to his [or her] adversary of a present purpose to maintain [the litigant’s] rights before the court.” Additionally, “[i]t is well established that the purpose of § 52-592(a) is to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his [or her] day in court…” Section § 52-592(a) provides in relevant part: “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 … the plaintiff … may commence a new action, except as provided in subsection (b) of this section, for the same cause of action at any time within one year after the determination of the original action or after the reversal of the judgment.” The Supreme Court analyzed its prior decisions in Rocco v. Garrison [citation]and Dorry v. Garden [citation]. The Court’s analysis in Rocco demonstrated that the phrase “commenced within the time limited by law” in § 52-592(a) cannot mean effectuating proper service, but instead, the Court explained that “effective notice” to a defendant is sufficient. The decision in Dorry further held that “effective notice” of the original action is sufficient to comment the action for purpose of § 52-592 and concluded that the two defendants in that case had received effective notice when they became aware of the first action and received a copy of the writ, summons and complaint within the statute of limitations.

The plaintiff in this case asserted that the Appellate Court incorrectly interpreted Rocco and Dorry to require receipt of the writ, summons and complaint within the statute of limitations. The Supreme Court could not agree that the saving statute operates to save any action in which a good faith attempt at service of process has been made. The Supreme Court took this opportunity to clarify that receipt of the summons and complaint by the defendant is required in order for the action to have been “commenced” under § 52-592(a). In other words, it matters only that the defendant received those documents within the time permitted by law, even if they were received through improper means. The Supreme Court concluded that, through receipt of the summons and complaint, the defendant not only knows of the existence of the action, but also knows the identity of the parties, the nature of the claims against him or her, and the court in which the claims are being brought, so that the defendant can protect his or her rights and defend the action. In the present case, because the plaintiff cannot establish that the defendant received the summons and complaint before the statute of limitations expired, the plaintiff cannot commence an action for purposes of § 52-592. The Supreme Court upholds the lower court’s decision. Paul Laiuppa v. Mary Mortiz, SC 20798