210 Conn. 721 | Conn. | 1989
The dispositive issue in this case is whether the administratrix of a decedent’s estate can bring a new action for wrongful death under our accidental failure of suit statute, General Statutes § 52-592,
The factual and procedural background of this case is not in dispute. Redgnard Isaac died at Mt. Sinai Hospital in Hartford on April 10, 1979. On March 30, 1981, the plaintiff commenced a wrongful death action pursuant to General Statutes § 52-555
The plaintiff brought the present action for wrongful death on June 7,1985, against the same four defendants. The defendants moved to strike the complaint on the ground that it was barred by the statute of limitations contained in § 52-555, which provides that actions for wrongful death must be brought “within two years from the date when the injury is first sustained or discovered or . . . should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of.” In granting the motion to strike, the court ruled that: (1) the time limitation for bringing an action under § 52-555 is a limitation of the liability itself and must be strictly complied with; (2) the second cause of action was the same cause of action as the original because it was the decedent’s claim for his injuries and death resulting from the same group of facts that made up the defendants’ alleged negligence; (3) General Statutes § 52-592, our accidental failure of suit statute, does apply to wrongful death cases; (4) the limitation portion of the wrongful death statute is substantive and may not be waived; (5) a cause of action for wrongful death does not arise and exist so that the statute of limitations can begin to run upon it until an adminis
Although the parties have framed the issue in different ways,
We first note certain claims of the defendants with which we agree. It is undisputed that § 52-555 requires that an executor or administrator must bring a wrongful death action within the three year statute of limitations. “[Standing to bring a wrongful death action
The case of Korb v. Bridgeport Gas Light Co., 91 Conn. 395, 99 A. 1048 (1917), furnishes an unusually strong foundation on which to build our analysis of the effect of § 52-592 on this case. In Korb, the plaintiff administrator brought an action under the provisions of § 4 of chapter 193 of the Public Acts of 1903 to recover for personal injuries resulting in the death of his intestate decedent. The pleadings revealed that the action was not commenced within one year from the neglect complained of as then required by the statute. The action was, however, commenced within one year after the entering of a judgment of nonsuit on a former action for the same cause begun within one year from the neglect. After a verdict and judgment for the plaintiff the defendant appealed, claiming, among other things, that the court erred in overruling its earlier demurrer to the complaint which contended that under the circumstances described above the plaintiff had not presented a good cause of action. Id., 396.
The defendant in Korb argued that the extension statute involved had no bearing or effect upon limitations contained in statutes creating a right and made an essential condition of the existence of that right. We held: “Section 1127 provides that if any action, commenced within the time limited by law, shall fail for specified causes, the plaintiff may bring a new action for the same cause within one year after the determi
We have consistently held that our accidental failure of suit statute, General Statutes § 52-592, “is remedial and is to be liberally interpreted.” Ross Realty Corporation v. Surkis, 163 Conn. 388, 393, 311 A.2d 74 (1972); accord Baker v. Baningoso, 134 Conn. 382, 387, 58 A.2d 5 (1948); Johnston v. Sikes, 56 Conn. 589, 596 (1888) (a very liberal construction is given to saving statute). Keeping this in mind, we turn to the relevant criteria in § 52-592 that the plaintiff must satisfy in order to prevail: “If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits . . . because the action has been dismissed for want of jurisdiction, or the action has been otherwise . . . defeated . . . for any matter of form . . . the plaintiff . . . may commence
The first issue is whether the original suit was an “action” within the meaning of § 52-592. In Baker v. Baningoso, supra, the plaintiff brought a second wrongful death action after the statute of limitations had run. The plaintiff claimed that the accidental failure of suit statute modified the wrongful death act and thus gave him an additional year to bring suit. We said: “Section 6024 [accidental failure of suit statute] does modify § 1005h [wrongful death statute] if the circumstances bring the case within its terms.” Id., 386, citing Korb v. Bridgeport Gas Light Co., supra.
General Statutes § 52-45a provides in pertinent part that “[c]ivil actions shall be commenced by legal process consisting of a writ of summons or attachment, describing the parties, the court to which it is returnable, the return day and the date and place for the filing of an appearance. The writ shall be accompanied by the plaintiffs complaint.” The plaintiffs suit met this straightforward statutory summary of the contents of a “civil action.”
In Carbone v. Zoning Board of Appeals, 126 Conn. 602, 13 A.2d 462 (1940), we held that the word “action” in the accidental failure of suit statute then in effect did not include administrative appeals. We said: “In Korb v. Bridgeport Gas Light Co., [supra], a case which the trial court held to be decisive of the issue presented on the demurrer, we held that § 6024 applied not only to obviate the running of statutes of limitation but also as regards limitations of time inherent in a cause of action created by statute. We pointed out (p. 401) that the language of the statute was general and comprehensive, neither embodying nor suggesting reservations or exceptions; that the extension of time was in
The defendants do not take issue with the legal precepts cited above. They do, however, vigorously claim that the first suit was not an action because without an administratrix to bring suit within the time limitation contained in the wrongful death statute, no timely action was commenced by the claimed administratrix. In other words, they claim that because the first suit never legally existed, there was no action that could
The defendants also stress the holding in Ecker v. West Hartford, 205 Conn. 219, 232, 530 A.2d 1056 (1987), where we stated that the time limitation in our wrongful death statute is a limitation on the liability itself and not of the remedy alone. The defendants’ arguments, however, prove nothing. These arguments overlook our clear ruling in Korb that the hardships sought to be remedied by the accidental failure of suit statute are the same whether the statute be one which concerns the remedy only, or the right as well as the remedy. Korb v. Bridgeport Gas Light Co., supra, 401. Furthermore, our statement in Ecker v. West Hartford, supra, that where a time limitation is contained in a statute creating a right of action that did not exist at common law, then the remedy exists only during the prescribed period and not thereafter, cannot be considered in isolation. That undoubtedly correct statement of the law was made in a case that did not involve § 52-592. The plaintiff’s claim to a valid resurrection of her case under § 52-592 is readily reconciled with this statement in Ecker if we add to the phrase that the cause of action exists “only during the prescribed period and not thereafter” the words “unless saved by the accidental failure of suit statute.” Although their propositions of law are, concededly, correct, the defendants are only restating the grounds on which the first suit was dismissed. These claims have validity only if
The defendants Mt. Sinai Hospital, St. Francis Hospital and Richard B. Weltman next claim that the trial court’s granting of the defendants’ motion to dismiss for want of subject matter jurisdiction was equivalent to a trial on the merits. The defendants have cited no authority in support of their claim. “In determining whether a court lacks subject matter jurisdiction, the inquiry usually does not extend to the merits of the case. GHK Exploration Co. v. Tenneco Oil Co., 857 F.2d 1388, 1392 (10th Cir. 1988); State v. S & R Sanitation Services, Inc., 202 Conn. 300, 301, 521 A.2d 1017 (1987); Rhodes v. Hartford, 201 Conn. 89, 92, 513 A.2d 124 (1986); Davis v. Board of Education, 3 Conn. App. 317, 320, 487 A.2d 1114 (1985).” Lampasona v. Jacobs, 209 Conn. 724, 728, 553 A.2d 175 (1989). In view of the defendants’ failure to cite any persuasive authority to the contrary, we decline further review of this claim.
The defendants Mt. Sinai Hospital, St. Francis Hospital and Richard B. Weltman also briefed the argument that § 52-592 is inapplicable because the plaintiff in the first suit is not the same plaintiff as in the subsequent suit. They claim that the person actually bringing the first suit was Deborah Isaac, individually, as opposed to Deborah Isaac, administratrix, who brought the second suit. It is difficult to conceive of a closer identity of interest than that found in this case. The defendants’ argument ignores the fact that the named plaintiff in each case was “Deborah Isaac, Administratrix.” The fact that Deborah Isaac in the first case was not, in fact, the administratrix of the estate of Redgnard Isaac does not destroy the identity of interest but
In Gaines v. New York, supra, 539, the original action had been brought to a court that lacked subject matter jurisdiction. In upholding the maintenance of the plaintiff’s subsequent suit under the savings statute Judge Cardozo said: “The [saving] statute is designed to insure to the diligent suitor the right to a hearing in court till he reaches a judgment on the merits. Its broad and liberal purpose is not to be frittered away by any narrow construction. The important consideration is that by invoking judicial aid, a litigant gives timely notice to his adversary of a present purpose to maintain his rights before the courts.” Id. We, likewise, decline to “fritter away” the strong remedial purpose of our saving statute, § 52-592.
There is error, the judgment of dismissal is set aside and the case is remanded for further proceedings.
In this opinion the other justices concurred.
General Statutes § 52-592 (a) provides in relevant part: “accidental failure of suit; allowance OF A NEW action, (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; or if, in any such action after a verdict for the plaintiff, the judgment has been set aside, or if a judgment of nonsuit has been rendered or a judgment for the plaintiff reversed, the plaintiff, or, if the plaintiff is dead and the action by law survives, his executor or administrator, 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.”
“[General Statutes] Sec. 52-555. actions for injuries resulting in death. In any action surviving to or brought by an executor or administrator for injuries resulting in death, whether instantaneous or otherwise, such executor or administrator may recover from the party legally at fault for such injuries just damages together with the cost of reasonably necessary medical, hospital and nursing services, and including funeral expenses, provided no action shall be brought to recover such damages and disbursements but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of.”
The plaintiff framed the issue as follows: “If Section 52-592 allows a second action for the same cause of action to be brought when a complaint has been served within the statute of limitations but is dismissed for lack of subject matter jurisdiction or any matter of form, and if this statute must be liberally construed in favor of the plaintiff, and if plaintiff, in her capacity as administratrix, caused a complaint to be served on defendants within the statute of limitations, and if plaintiff had not yet been formally appointed administratrix through mistake, and if plaintiff’s first action was dismissed because lack of a valid administratrix deprived the court of subject matter jurisdiction, and if plaintiff, after being appointed administratrix, filed a second action within one year for the same cause of action, should not the trial court have allowed plaintiff’s second action?”
The defendant Anesthesia Associates, P.C., framed the issue as follows: “Whether or not the administrator of the estate of a decedent who is appointed more than three years after the death of the decedent can maintain an action for wrongful death under Conn. Gen. Stat. Sec. 52-555?”
The defendants Mt. Sinai Hospital, St. Francis Hospital and Richard B. Weltman framed the issue as follows: “Whether the accidental failure of suit statute, General Statutes section 52-592, enables a wrongful death action to be brought when the administratrix was not appointed until after the right of action had expired, or when the plaintiff in the failed suit is not the same plaintiff as in the subsequent suit.”