Dorry v. Garden
98 A.3d 55
Conn.2014Background
- Decedent died August 15, 2007; wrongful death action governed by the two‑year limit in Conn. Gen. Stat. § 52‑555 (extended by a 90‑day § 52‑190a(b) extension to Nov. 13, 2009).
- Plaintiff delivered writ, summons and complaint to a marshal via overnight on Nov. 9, 2009; marshal attempted service Nov. 12, 2009 and left papers at defendants’ business addresses but erroneously returned that defendants were served "in hand."
- Trial court dismissed the first action (Apr. 29, 2011) for improper service; plaintiff filed a second action under the savings statute, § 52‑592, within one year of that dismissal and later filed the writ in Jan. 2012.
- Defendants moved to dismiss/for summary judgment asserting the two‑year statute barred the second action because the first action was not properly "commenced within the time limited by law."
- Plaintiff relied on Rocco v. Garrison to argue the first action was "commenced" for savings‑statute purposes because defendants received effective notice within the limitations period; plaintiff also argued the 30‑day marshal service window in § 52‑593a should be part of the "time limited by law."
- Trial court rejected the savings‑statute argument and dismissed; Supreme Court reversed as to four defendants (Sanderson, Danica‑Aaboe, Garden, Carroll) and remanded for Wilson because a factual dispute remained as to his actual notice date.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an action is "commenced within the time limited by law" under § 52‑592 when defendant received effective notice despite improper service | The action is "commenced" for § 52‑592 if defendant received actual/effective notice within the limitations period (Rocco). | An action is not "commenced" unless service was valid; improper service means § 52‑592 does not apply. | Held for plaintiff: Rocco controls — effective notice within the limitations period suffices to "commence" an action for § 52‑592. |
| Whether Rocco is limited to its federal‑service facts or applies more broadly | Rocco applies broadly: actual notice within the time limited by law triggers § 52‑592 regardless of the particular service method. | Rocco should be confined to its unique federal‑rule facts; it does not apply here. | Held for plaintiff: Rocco’s reasoning applies; it is not confined to federal service rules. |
| Whether the 30‑day marshal service window in § 52‑593a is part of the "time limited by law" for § 52‑592 savings | The § 52‑593a thirty‑day period is part of the "time limited by law," so effective notice within that period counts for § 52‑592. | The § 52‑593a 30‑day window should not extend the limitations period for purposes of the savings statute. | Held for plaintiff: § 52‑593a’s 30‑day marshal window is included in the "time limited by law" for § 52‑592. |
| Whether the dismissal as to defendant Wilson can be decided on the pleadings | Plaintiff points to deposition evidence showing notice by hospital risk management; that evidence is undeveloped but may show effective notice. | Defendants assert dismissal is appropriate because service was improper and no timely notice was shown. | Mixed: for Wilson there is a critical factual dispute about exactly when he received notice; an evidentiary hearing is required. |
Key Cases Cited
- Rocco v. Garrison, 268 Conn. 541 (Conn. 2004) (savings statute applies when defendant received actual notice within limitations even if formal service was insufficient)
- Conboy v. State, 292 Conn. 642 (Conn. 2009) (standards on considering supplemental undisputed facts in jurisdictional motion to dismiss)
- Dayner v. Archdiocese of Hartford, 301 Conn. 759 (Conn. 2011) (standard of review for motions to dismiss challenging subject‑matter jurisdiction)
- Nine State Street, LLC v. Planning & Zoning Commission, 270 Conn. 42 (Conn. 2004) (§ 52‑593a is a remedial provision salvaging actions lost by the passage of time)