48 Conn. App. 60 | Conn. App. Ct. | 1998
Lead Opinion
Opinion
The plaintiff, Earl Beebe, appeals from the summary judgment rendered by the trial court in favor of the defendant town of East Haddam (town). The sole issue on appeal is whether the statute of limitations was tolled during the time the plaintiff was incapacitated due to illness. We hold that the statute of limitations was not tolled during the plaintiffs illness and affirm the summary judgment of the trial court.
Prior to his becoming ill, the plaintiff, his attorney, and a representative of the town’s insurance carrier had scheduled a meeting to discuss settlement of the plaintiffs claims against the town. The meeting was canceled due to the plaintiffs illness. The record reveals that the plaintiffs attorney sent the insurance carrier a demand letter dated August 28,1995, which was modified by letter dated August 29, 1995. The insurance carrier apparently did not respond to the demand letter
The plaintiff commenced this lawsuit on October 25, 1995, when a deputy sheriff served the summons and complaint on the town clerk. The single count complaint is based on § 13a-149. It does not allege that the plaintiff was incompetent at any time. The town filed an answer and two special defenses to the complaint. The first special defense alleges that the plaintiffs claim is barred by “the applicable statute of limitations,” and the second special defense alleges that the plaintiffs injuries and loss were due to his own carelessness and negligence. By motion dated July 29, 1996, the town moved for summary judgment based on the statute of limitations defense. The plaintiff filed both an objection to the motion for summary judgment on September 6, 1996, and a single general denial in response to the town’s special defenses on November 18,1996. On February 10, 1997, after hearing oral arguments at short calendar-, the trial court granted the town’s motion for summary judgment. This appeal followed.
On appeal, the plaintiff claims that the statute of limitations was tolled for forty-seven days from May 19 until July 5, 1995, because he was incompetent during that time. Because of his claimed incompetence, the plaintiff argues, the statute of limitations should be extended forty-seven days from the two-year anniversary date of his injury, September 11,1993, until October 28, 1995. The plaintiff also claims that the trial court should have denied the town’s motion for summary judgment because the question of his competency is a genuine issue of material fact. We disagree.
I
Before we address the issue regarding the tolling of the statute of limitations, we examine the question of
In his brief to this court, the plaintiff notes for the first time that § 52-584 does not apply to a cause of action brought pursuant to § 13a-149 because § 13a-149 contains its own limitation of action provision. In its reply brief, the town agrees that § 13a-149 is the controlling statute, but points out that both statutes require a cause of action to be brought within two years.
“[Wjhere a statute gives a right of action which did not exist at common law, and fixes the time within which the right must be enforced, the time fixed is a limitation or condition attached to the right . . . .”
“Where the trial court reaches a correct decision but on mistaken grounds, this court has repeatedly sustained the trial court’s action if proper grounds exist to support it.” Id., 597-98. For the reasons given in part II, the case before us falls within the ambit of this rule of law.
II
We now turn to the central issue on this appeal: whether the illness that befell the plaintiff on May 19, 1995, and rendered him incapable of conducting his affairs until July 5,1995, tolled the statute of limitations for the intervening forty-seven days.
The relevantportion of § 13a-149 provides: “No action for any such injury sustained on or after October 1, 1982, shall be brought except within two years from the date of such injury. . . .” A lawsuit commences when a proper officer serves the plaintiffs summons and complaint on the defendant. See Lacasse v. Burns, 214 Conn. 464, 475, 572 A.2d 357 (1990). The plaintiff sustained injuries on September 11, 1993. To state a valid cause of action, the plaintiff had to commence his suit on or before September 10, 1995, unless the statute of limitations were tolled for some reason. Because we find no reason, in fact or law, for the statute
The purpose of the statute of limitations is well settled in our law. “There are two principal reasons generally given for the enactment of a statute of repose: (1) it reflects a policy of law, as declared by the legislature, that after a given length of time a [defendant] should be sheltered from liability and furthers the public policy of allowing people, after the lapse of a reasonable time, to plan their affairs with a degree of certainty, free from the disruptive burden of protracted and unknown potential liability . . . and (2) to avoid the difficulty in proof and record keeping which suits involving older [claims] impose.” (Internal quotation marks omitted.) Sanborn v. Greenwald, 39 Conn. App. 289, 305, 664 A.2d 803, cert. denied, 235 Conn. 925, 666 A.2d 1186 (1995). “[T]he policy of statutes of limitation includes promoting repose by giving security and stability to human affairs.” (Internal quotation marks omitted.) Beckenstein v. Potter & Carrier, Inc., 191 Conn. 150, 159, 464 A.2d 18 (1983). “[W]e will not deprive the defendants of the ‘finality, repose and avoidance of stale claims and stale evidence’ for which the statute of limitations was designed. Connecticut Bank & Trust Co. v. Winters, 225 Conn. 146, 157 n.20, 622 A.2d 536 (1993).” McNeil v. Riccio, 45 Conn. App. 466, 473, 696 A.2d 1050 (1997).
The plaintiff claims that the statute of limitations should have been tolled while he was hospitalized and unable to make decisions for himself. “ ‘The rule that the court will not read exceptions into [the] statute of limitations applies in the case of persons non compos mentis. Generally if there is no exception in favor of incompetents, the statute will run against claims in their favor the same as against claims of others not expressly mentioned in the exceptions of the statute.’ 51 Am. Jur. 2d, Limitation of Actions § 186.” Lopez v. United
While the absence of a tolling provision in § 13a-149 “may work hardship, it is not the function of this court to pass upon the merit of legislation. . . . Suffice it to say that the omission of a tolling provision in [this section] of the General Statutes is highlighted by the inclusion of tolling provisions in [other sections]; hence, we must assume that the differences were intentional and that the legislature did not intend [incompetence] necessarily to toll the Statute of Limitations.” (Citation omitted.) Kirwan v. State, 168 Conn. 498, 501, 363 A.2d 56 (1975). Thus, this court is without authority to extend by forty-seven days the time in which the plaintiff could have commenced an action against the town.
The plaintiffs second claim is that his illness and claimed incompetence raise genuine issues of material fact, and that the trial court should have denied the town’s motion for summary judgment. Because the court may not extend the statute of limitations even if there was evidence to support the plaintiffs claim of incompetence, we need not address the plaintiffs second claim.
The judgment is affirmed.
In this opinion HENNESSY, J., concurred.
The plaintiff was represented by the same attorney for all matters relevant to and including this appeal.
General Statutes § 13a-149 provides in relevant part: “Damages for injuries by means of defective roads and bridges. Any person ipjured in person or property by means of a defective road or bridge may recover damages from the party bound to keep it in repair. No action for any such injury sustained on or after October 1, 1982, shall be brought except within two years from the date of such injury. No action for any such injury shall be maintained against any town . . . unless written notice of such injury and a general description of the same, and of the cause thereof and of the time and place of its occurrence, shall, within ninety days thereafter be given to ... the clerk of such town . . . .” (Emphasis added.)
The plaintiffs affidavit contains two different dates of discharge as an inpatient from the rehabilitation center. The discrepancy is irrelevant to the issue before us.
Although it is not mandatory, we note that the preferred manner of pleading is to identify specifically the number of the statute relied on; see Practice Book § 109A (a); so that the issue will be clarified for the benefit of all interested parties, including the court. See Federal Deposit Ins. Corp. v. Bombero, 37 Conn. App. 764, 768 n.9, 657A.2d 668 (1995), appeal dismissed, 236 Conn. 744, 674 A.2d 1324 (1996); see also Rowe v. Godou, 209 Conn. 273, 275, 550 A.2d 1073 (1988).
General Statutes § 52-584 provides in relevant part: “No action to recover damages for injury to the person . . . caused by negligence, or by reckless or wanton misconduct . . . shall be brought but within two years from the date when the injury is first sustained . . . .”
Concurrence Opinion
concurring. I agree with the result reached by the majority. I write separately, however, because I believe the following additional analysis is necessary to reach the majority’s conclusion.
The plaintiff claims, in part, that his illness and claimed incompetence raise a genuine issue of material fact. This claim is unfounded for the following reasons.
The facts in the record clearly demonstrate that the plaintiff retained counsel to represent his interests against the town approximately one month after he was allegedly injured. The attorney knew of the plaintiffs illness just prior to the scheduled meeting with a representative of the town’s insurance carrier. In his affidavit in support of his objection to the town’s motion for summary judgment, the plaintiff attested that his wife made all decisions for him during the time in which he was unable to make them for himself. The plaintiffs wife attests in her affidavit, also in support of the objection to summary judgment, that she is a registered nurse
The plaintiff further claims that the affidavits filed in support of his objection to the town’s motion for summary judgment raise a genuine issue of material fact and that the trial court should have held a hearing on the issue. See Ridgeway v. Ridgeway, supra, 180 Conn. 538. The plaintiff fails to distinguish pleadings from facts raised in an affidavit. “Affidavits are not pleadings, however, and a plaintiff cannot, under the guise of fortifying the complaint, present an entirely new cause of action or expand the scope of his cause of action by means of [an affidavit]. . . . The issue must be one which the party opposing the motion is entitled to litigate under his pleadings and the mere existence of a factual dispute apart from the pleadings is not enough to preclude summary judgment.” (Citation omitted.) Shuster v. Buckley, 5 Conn. App. 473, 477, 500 A.2d 240 (1985). Under the facts of this case, we need not decide whether the statute of limitations would have been tolled if the plaintiff had pleaded incompetency in his complaint or as a reply to the town’s first special defense alleging that the action was time barred.
Regardless of the plaintiffs claimed incompetence between May 19 and July 5, 1995, he makes no claim of incompetence for the two months immediately preceding the tolling of the statute of limitations. He was represented by an attorney who first acted on his behalf in October, 1993, and, in fact, signed a demand letter in August, 1995. There are no facts to explain why the plaintiff did not commence an action against the town