Personal Injury / CT Appellate Court Rules for Defendant in Accidental Failure of Suit Case

Personal Injury Law: Despite motion to dismiss being procedurally improper for challenging an action brought pursuant to the Accidental Failure of Suit Statute, Appellate Court enters judgment in favor of defendant based on plaintiff’s failure to establish that her prior action was dismissed due to mistake, inadvertence, or excusable neglect:

The plaintiff appeals the lower court’s granting of the defendant’s motion to dismiss based on lack of jurisdiction. By way of background, the plaintiff initially brought a claim based on negligence against the defendant arising out of a motor vehicle accident. The plaintiff failed to respond to the defendant’s discovery requests and the defendant filed a motion for order of compliance. On March 6, 2023, the lower court held a hearing to determine if the plaintiff had complied with discovery. Plaintiff’s counsel failed to appear, and the lower court issued a judgment of nonsuit against the plaintiff. More than ten months after her initial action was nonsuited, the plaintiff commenced a new action for damages arising out of the same motor vehicle collision pursuant to Connecticut General Statutes § 52-592(a), the Accidental Failure of Suit Statute. The defendant filed a motion to dismiss on the grounds that the court lacked jurisdiction because the plaintiff could not prove that her prior action was dismissed due to mistake, inadvertence, or excusable neglect, as required in order for the Accidental Failure of Suit Statute to apply. The plaintiff objected, and upon hearing oral argument from both parties, the lower court granted the defendant’s motion to dismiss. On appeal, the plaintiff argues that the lower court erred in granting the motion to dismiss as it was procedurally improper. In agreeing with the plaintiff, the Appellate Court finds that generally, a motion to dismiss is not the proper procedural vehicle for challenging an action brought under the Accidental Failure of Suit Statute. However, to succeed on appeal, the plaintiff must demonstrate that she was harmed by the trial court’s erroneous granting of the defendant’s motion to dismiss. In reviewing the record, the Appellate Court finds that the plaintiff’s second complaint does not sufficiently allege how her cause of action is covered by the accidental failure of suit statute. Additionally, the plaintiff had the opportunity to provide a factual basis for her § 52-592 action in her objection to the defendant’s motion to dismiss, yet she failed to do so. Further, the plaintiff could have provided evidence to support her invocation of § 52-292 at the trial court’s hearing on the motion to dismiss, but she did not do so. Because the plaintiff failed to offer even a remote factual basis to support her action under the Accidental Failure of Suit Statute, the Appellate Court concludes that any additional opportunities to do so would be unlikely to yield a different outcome. Therefore, the Appellate Court cannot conclude that the plaintiff was harmed by the erroneous procedure of resolving the applicability of § 52-592 by way of motion to dismiss. Because the form of the lower court’s judgment itself is improper, the Appellate Court remands the case to the lower court with the direction to enter judgment for the defendant. Council v. Hein, 238 Conn. App. 634, 357 A.3d 1099 (2026).