In its opinion released on September 9, 2014, the Connecticut Supreme Court reviewed the decision of the trial court in a Connecticut medical malpractice case where the trial court granted the defendants’ motions to dismiss the medical malpractice case even though it was commenced within one year of the dismissal of the first action, because the defendants were not properly served within the statute of limitations. The trial court further determined that Section 52-592 did not apply to save the plaintiff’s action because the first action was not “commenced” for purposes of that statute.
The Alleged Underlying Facts
The administratrix of the estate of a deceased man filed a wrongful death medical malpractice case against the Connecticut medical malpractice defendants who had provided the man with medical care and treatment. The man had died on August 15, 2007.
General Statutes Section 52-555 requires that a wrongful death action be filed within two years of the date of death. Prior to August 15, 2009, the plaintiff had obtained a ninety day extension of time to file suit pursuant to General Statutes § 52-190a (b), which extended the statute of limitations contained in Section 52-555 until November 13, 2009.
On November 9, 2009, the plaintiff sent a writ, summons and complaint to a marshal by overnight delivery and requested that the medical malpractice defendants be served in hand. On November 12, 2009, the marshal left copies of the writ, summons and complaint in various professional or hospital offices and erroneously indicated on the return that each defendant was served “in hand” on that date.
On April 29, 2011, the trial court dismissed the claims against the defendants for improper service.
The plaintiff re-filed the wrongful death medical malpractice case in December, 2011, pursuant to Section 52-592. The plaintiff filed the writ, summons and complaint on January 9, 2012. Thereafter, all of the defendants filed motions for summary judgment or, in the alternative, dismissal, on the basis of the two year statute of limitations contained in Section 52-555. The trial court granted the defendants’ motions and dismissed the action: although it was commenced within one year of the dismissal of the first action, the defendants were not properly served within the statute of limitations and therefore the trial court was without jurisdiction to hear the case. The trial court further determined that Section 52-592 did not apply to save the plaintiff’s action because the first action was not “commenced” for purposes of that statute. The plaintiff filed an appeal.
The Connecticut Supreme Court’s Decision
The Connecticut Supreme Court stated that it was required to interpret the phrase “commenced within the time limited by law” contained in Section 52-592 (a) (“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, or the action has been otherwise avoided or defeated by the death of a party or for any matter of form … the plaintiff … may commence a new action … for the same cause at any time within one year after the determination of the original action or after the reversal of the judgment”).
Citing one of its prior decisions, the Connecticut Supreme Court stated that the phrase “commenced within the time limited by law” cannot mean effectuating proper service, and that effective notice to a defendant is sufficient. In the present case, it was undisputed that the plaintiff’s counsel sent the writ, summons and complaint to a marshal on November 9, 2009, by overnight delivery and requested that the marshal effect in hand service on the defendants; despite indicating on the return of service that she effected in hand service, the marshal actually left copies of the writ, summons and complaint at the business addresses of two of the defendants; these two defendants became aware of the first action and received a copy of the writ, summons and complaint on November 13, 2009 (within the statute of limitations), as evidenced by the deposition testimony of the business manager of one of the defendants who testified that she left the copy of the writ, summons and complaint on the defendant’s desk on November 12, 2009 and that the defendant saw the documents on November 13, 2009, and the other defendant testified during her deposition that she received a copy of the writ, summons and complaint on November 13, 2009.
Hence, the Connecticut Supreme Court held that the wrongful death medical malpractice action was commenced against these two defendants when they had effective notice within the time period prescribed by the statute of limitations.
With regard to the remaining three defendants, the Connecticut Supreme Court had to construe whether the additional thirty days for a marshal to serve process under Section 52-593a is part of the “time limited by law” contained in Section 52-592 (a) (Section 52-593a states: “[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, constable or other proper officer within such time and the process is served, as provided by law, within thirty days of the delivery”).
The Connecticut Supreme Court held that reading these two remedial statutes together so as to give effect to both required it to conclude that the thirty day time period for a marshal to effectuate service must be included within the “time limited by law” for purposes of the savings statute. Therefore, if a defendant has effective notice within the thirty day period allowed for a marshal to make service of the writ, summons and complaint, the action will be considered commenced for purposes of the savings statute (“if a defendant has actual notice within the thirty days in § 52-593a for a marshal to make service, the savings statute would operate to save the claim”).
Source Karen Dorry, Administratrix (Estate of Jerome Dorry), et al. v. Mitchell S. Garden, et al., SC 19191.
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