ARAMIS RIOS ET AL. v. CCMC CORPORATION ET AL.
(AC 28024)
Appellate Court of Connecticut
Argued December 3, 2007—officially released April 8, 2008
Flynn, C. J., and Bishop and Berdon, Js.
“[I]t is hard to imagine a more compelling state interest than the support of its children.” (Internal quotation marks omitted.) Jarmon v. Commissioner of Social Services, 47 Conn. Sup. 492, 503, 807 A.2d 1109 (2002). For the foregoing reasons, we conclude that the court properly granted Geico‘s motion for summary judgment.
The judgment is affirmed.
In this opinion the other judges concurred.
Donald J. McCarthy, Jr., for the appellants (plaintiffs).
Rebecca M. Harris, with whom was Donna R. Zito, for the appellees (defendants).
Opinion
FLYNN, C. J. In 2005, the General Assembly, by enacting
In this medical malpractice action, the plaintiffs Betzabel Flores and her minor daughter, Aramis Rios, appeal from the judgment of the court granting the motion of the defendants, CCMC Corporation, doing business as Connecticut Children‘s
improperly (1) granted the defendants’ motion to dismiss and (2) failed to find that a motion to dismiss was not the proper vehicle to address the defendants’ claim.
The following facts and procedural history are relevant to our resolution of the plaintiffs’ appeal. In this medical malpractice case, the plaintiffs claimed that the defendants were negligent in failing to diagnose appendicitis on October 18, 2003. On July 1, 2005, the plaintiffs, pursuant to
discovery, the court upon motion or upon its own initiative shall impose upon the person who signed such certificate or a represented party, or both, an appropriate sanction which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion or other paper, including a reasonable attorney‘s fee. The court may also submit the matter to the appropriate authority for disciplinary review of the attorney if the claimant‘s attorney or the apportionment complainant‘s attorney submitted the certificate.”
a certificate of good faith submitted by the plaintiffs’ attorney. The complaint did not include an opinion of a similar health care provider attesting to a good faith basis for the action, as required by
On November 21, 2005, the defеndants filed a motion to dismiss the plaintiffs’ complaint due to the plaintiffs’ failure to include the opinion of a similar heath care provider with the complaint, as required by
The matter subsequently was reassigned, and, after hearing oral argument, the court, Stengel, J., granted the defendants’ motion to dismiss the plaintiffs’ complaint on August 15, 2006. The court found that the plaintiffs’ complaint was dated September 30, 2005, and was filed Novеmber 4, 2005.4 The court reasoned that because the plaintiffs’ action was filed after October 1, 2005, the effective date of
statute applied. The court, therefore, dismissed the plaintiffs’ action concluding that they had not complied with the requirements of the public act. The plaintiffs thereafter filed this appeal.
I
The plaintiffs first claim that the court improperly granted the defendants’ motion to dismiss. We disagree.
We first set forth our standard of review on a challenge to a ruling on a motion to dismiss. “When the facts relevant to an issue are not in dispute, this court‘s task is limited to a determination of whether, on the basis of those facts, the trial court‘s conclusions of law are legally and logically correct.” (Internal quotation marks omitted.) Scoville v. Shop-Rite Supermarkets, Inc., 86 Conn. App. 426, 430, 863 A.2d 211 (2004), cert. denied, 272 Conn. 921, 867 A.2d 838 (2005). Because there is no dispute regarding the basic material facts,
The plaintiffs’ claim, with respect to
Section 52-190a (a) provides that before filing a personal injury action against a health care provider, a potential plaintiff must make “a reasonable inquiry as
permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant. . . .” In order to show good faith, the complaint, initial pleading or apportionment complaint is required to contain a certificate of the attorney or party filing the action stating that “such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant....”
the statute did not require plaintiffs to include with the complaint an opinion of a similar health care provider attesting to a good faith basis for an action.
Effective October 1, 2005, the statute was amended to require that in order to show the existence of good faith, claimants or their counsel, prior to filing suit, “shall
In this case, the complaint did not include an opinion of a similar health care provider attesting to a good faith basis for the action, as required by the 2005 amendment to
appropriate authority for disciplinary review of the attorney if the claimant‘s attorney submitted the certificate.”
complaint were delivered to a marshal for service of process on September 30, 2005, one day before the effective date of the 2005 amendment to
The word “filed” is not defined expressly in
The usage of the term “filed” in these statutory provisions to refer to the act of bringing a complaint or other pleading to the clerk of the court comports with the usage of the term in subsection (b) of the statute at issue.
The plaintiffs’ argument that “filing,” for purposes of the effective date of the statute, refers to the delivery of the writ of summons and complaint to a state marshal for service, therefore, is unavailing. Our review of the text of the statute and its relationship to other statutes reveals that this reading is inappropriate. An action is
The plaintiffs argue, citing Rosenberg v. Planning Board, 155 Conn. 636, 236 A.2d 895 (1967), that delivery of a writ of summons and complaint to a proper serving officer constitutes “filing” of the thing to be filed. Rosenberg, however, did not concern a requirement of filing with the clerk of the Superior Court, nor did it deal with delivery of process to a serving officer. Instead, it concerned a сlaim that a proposed amendment to the master zoning plan had not been delivered timely to the town clerk. The Rosenberg court held that the trial court had found actual delivery to the town clerk by the defendant planning board. Id., 643. The court held that “[f]iling is accomplished by an actual delivery to the proper officer of the thing to be filed,” referring to a municipal officer, namely, the town clerk. Id. In employing that term, it did not refer to a process server. We, therefore, reject this argument.
Nowhere in their brief do the plaintiffs invoke
by law, within thirty days of the delivery.”7 This statute, had it been invoked, would not benefit the plaintiffs, in any event. Legal actions in Connecticut are “commenced” by service of process. See, e.g., Rocco v. Garrison, 268 Conn. 541, 553, 848 A.2d 352 (2004). There is a separate legal requirement for the return of the process so commenced to the clerk of the court after service of it by a marshal or other proper officer. See
The plain and unambiguous meaning of the term “filed” refers to the bringing of a complaint or other pleading to the clerk of the court. Accordingly, as correctly determined by the trial court, the plaintiffs filed their action on November 4, 2005, when the writ of summons and complaint were filed with the clerk of the Superior Court. As a result,
II
The plaintiffs next claim that the court improperly failed to find that a motion to dismiss was not the proper
vehicle to address the defendants’ claim. Specifically, the plaintiffs argue that the defendants’ motion to dismiss should have been denied, and the defendants should have been directed to file a motion to strike. We disagree.
This claim presents an issue of statutory construction over which our review is plenary. See Wilson v. Jefferson, supra, 98 Conn. App. 154.
The plaintiffs, citing LeConche v. Elligers, 215 Conn. 701, 579 A.2d 1 (1990), and Gabrielle v. Hospital of St. Raphael, 33 Conn. App. 378, 635 A.2d 1232, cert. denied, 228 Conn. 928, 640 A.2d 115 (1994), argue that a motion to dismiss is not the proper method of attacking the sufficiency of a good faith certificate in a medical malpractice case because the lack of а good faith certificate is not a jurisdictional defect depriving the court of subject matter jurisdiction over the case.8 The plaintiffs’ reliance on Gabrielle and LeConche is misplaced because these cases interpret a prior version of the relevant statute. See LeConche v. Elligers, supra, 701 (holding that neither language of
The 2005 amendment to the statute, however, rendered the line of cases which the plaintiffs cite inapplicable. Unlike the preceding revisions of the statute, the current revision of
The judgment is affirmed.
In this opinion BISHOP, J., concurred.
BERDON, J., dissenting in part. Although I agree with the majority‘s conсlusion in part I, I disagree with the majority‘s conclusion in part II that the failure of the attorney for the plaintiffs, Aramis Rios and her mother, Betzabel Flores, to attach a written opinion of a similar health provider to his good faith certificate, as set forth in
amended by
First, let me set the record straight. In reaching its conclusion, the majority erroneously relies on the claim that “[t]he plaintiffs’ attorney informed the [trial] court that he had not obtained an opinion of a similar health care provider prior to filing the action in court.” What actually transpired was the following:
“The Court: Why didn‘t you file the certificate with the thing [that is, the attorney‘s certification]?
“[The Plaintiffs’ Counsel]: Well, I didn‘t have a written letter at the time that brought this from the dоctor.” (Emphasis added.)
This colloquy reveals that the plaintiffs’ counsel never admitted, as claimed by the majority, that he failed to obtain an opinion from a similar health care provider.1 Rather, counsel informed the court that he had not obtained the opinion in written form at the time that he brought the complaint. Accordingly, if a motion to strike was granted, this would have allowed the plaintiffs to plead over, and the plaintiffs’ attorney could have attached the written opinion of the similar health care provider to his good faith certificate.
I begin my analysis, as our Supreme Court did in LeConche v. Elligers, 215 Conn. 701, 579 A.2d 1 (1990), by recognizing “the premise that traditionally the Superior Court has had subject matter jurisdiction of a common law medical malpractice action.” Id., 709. The issue presented in the present case, therefore, is whether, in enacting the most recent amendment to
Prior to the passage of
Although I recognize that LeConche v. Elligers, supra, 215 Conn. 701, addressed the inclusion of an attorney‘s good faith certificate, the legislature‘s amendment of
Moreover, in utilizing the word “dismissal” in subsection (c) of the current revision of
pleadings, rather than applicable substantive law, would govern the outcome of a case. Such an interpretation of the statute is reminiscent of eighteenth century common-law pleading, a system plagued by archaic legalism and highly technical formality that Connecticut abandoned long ago. The general purpose
A “case should not be decided solely on the basis of the literal meaning of a word. As Justice Reed of the United States Supreme Court has said: When that meaning has led to absurd or futile results, . . . this Court has looked beyond the words to the purpose of the act. Frequently, however, even when the plain meaning did not produce absurd results but merely аn unreasonable one plainly at variance with the policy of the legislation as a whole this Court has followed that purpose, rather than the literal words.” (Internal quotation marks omitted.) Simonette v. Great American Ins. Co., 165 Conn. 466, 474, 338 A.2d 453 (1973) (Bogdanski, J., dissenting), quoting United States v. American Trucking Assns., Inc., 310 U.S. 534, 543, 60 S. Ct. 1059, 84 L. Ed. 1345 (1940).
Accordingly, I would interpret
that seeks to “bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his or her day in court.” (Internal quotation marks omitted.) Vollemans v. Wallingford, 103 Conn. App. 188, 198, 928 A.2d 586, cert. granted on other grounds, 284 Conn. 920, 933 A.2d 722 (2007).
For the reasons given, I dissent.