Bealle v. Nyden's, Incorporated

• Decision Date: 30 July 1965
• Docket Number: Civ. A. No. 10334.
• Citation: 245 F. Supp. 86
• Court: U.S. District Court — District of Connecticut
• Parties: Peggy BEALLE and Morris A. Bealle, Plaintiffs, v. NYDEN'S, INCORPORATED, and Joseph P. Weyerstrass, Defendants.

245 F. Supp. 86

Peggy BEALLE and Morris A. Bealle, Plaintiffs, v. NYDEN'S, INCORPORATED, and Joseph P. Weyerstrass, Defendants.

Civ. A. No. 10334.

United States District Court D. Connecticut.

July 30, 1965.

COPYRIGHT MATERIAL OMITTED

Theodore I. Koskoff and T. Paul Tremont, of Murov & Tremont, Bridgeport, Conn., for plaintiffs.

John H. Welch, Jr., of Shapiro & Belinkie, Bridgeport, Conn., for defendant Weyerstrass.

TIMBERS, Chief Judge.

QUESTIONS PRESENTED

Defendant Joseph P. Weyerstrass' motion, pursuant to Rule 56, Fed.R.Civ.P., for summary judgment raises these questions: whether the one year Connecticut statute of limitations for personal injury actions, Conn.Gen.Stat. § 52-584 (1958), bars an action commenced in the District Court for the Southern District of New York more than one year after the cause of action arose, dismissed there for improper venue and transferred, pursuant to 28 U.S.C. § 1406(a), to this Court; and, if so, whether defendant is equitably estopped from raising the bar of the Connecticut statute of limitations by reason of representations made to plaintiffs' attorney by defendant's insurer. The Court holds the former question must be answered in the affirmative, the latter in the negative, and accordingly grants defendant Weyerstrass' motion for summary judgment.

FACTS

A truck, owned by defendant Nyden's Incorporated and operated by its employee, defendant Joseph P. Weyerstrass, collided September 2, 1960 on Main Street, Bridgeport, Connecticut with an automobile operated by plaintiff Morris A. Bealle in which his wife, plaintiff Peggy Bealle, was a passenger. Counts one and three of the complaint set forth Peggy Bealle's personal injury claims against Nyden's and Weyerstrass, respectively. Counts two and four set forth Morris Bealle's claims against Nyden's and Weyerstrass, respectively, for medical expenses and loss of the services and consortium of his wife.

Jurisdiction is founded on diversity of citizenship, plaintiffs being Virginia citizens, defendant Weyerstrass (the only defendant served) being a Connecticut citizen, and the amount in controversy, in the case of each plaintiff, being in excess of $10,000, exclusive of interest and costs. 28 U.S.C. § 1332(a).

Suit was first brought August 17, 1962 in the District Court for the Southern District of New York where personal service was effected upon defendant Weyerstrass only. Upon Weyerstrass' motion for summary judgment on grounds of improper venue and expiration of the Connecticut statute of limitations, Section 52-584, Judge Dawson on February 19, 1964 found venue improper and, on his own motion, pursuant to 28 U.S.C. § 1406(a), transferred the action to this District without prejudice to defendant's right to raise here the bar of the Connecticut limitation period.

Defendant Weyerstrass claims the bar of Section 52-584 as the sole ground for his summary judgment motion. Plaintiff opposes the motion on the grounds that (i) Section 52-584 does not apply to actions commenced in another jurisdiction within the limitation period of that jurisdiction and subsequently transferred to Connecticut, and (ii) even if Section 52-584 is applicable, plaintiffs' claim that defendant, by the conduct of his liability insurer, Lumbermens Mutual Casualty Company (Lumbermens), is estopped from raising the limitation defense presents a genuine issue of material fact unsuitable for summary adjudication.¹

STATUTE OF LIMITATIONS

This Court must apply the statute of limitations which a Connecticut state court would apply.² Section 52-584 of the Connecticut General Statutes, uniformly characterized as a procedural limitation,³ would be applied by a Connecticut state court to a claim founded on common law negligence.⁴ Accordingly Section 52-584 must be applied by this Court where the claim, as here, is based on a "garden variety tort"⁵ allegedly occurring in Connecticut.⁶

Section 52-584, in relevant part, provides that "No action to recover damages for injury to the person * * * caused by negligence * * * shall be brought but within one year from the date when the injury is first sustained or discovered, or in the exercise of reasonable care should have been discovered."

Plaintiffs stress that the statute expressly bars only actions "brought" after one year, not actions "maintained" after one year. It has been held, plaintiffs point out, that a diversity action in this Court is deemed "brought", for the purpose of tolling the predecessor of Section 52-584, upon filing a complaint in this Court.⁷ Plaintiffs conclude from this that the statute should be construed to bar only the commencement in Connecticut of personal injury actions after one year and not to bar the maintenance in Connecticut of an action commenced in another jurisdiction, within the statute of limitations of that jurisdiction, and subsequently transferred here. Since this action was first commenced in the Southern District of New York within the three year New York limitations provision,⁸ plaintiffs argue, the action is not barred by Section 52-584 upon transfer to this District.

The statutory language, in the context in which the present question is raised, has never been construed by the Connecticut Supreme Court of Errors, nor by any Connecticut state court, so far as this Court has been able to ascertain. The Court, therefore, must "make its own determination as to what the state courts would probably do,"⁹ exercising "its independent judgment as to what the statute means, guided by analogous decisions, if any, and the court's own reasoning as to the intended public policy."¹⁰

The general purpose of statutes of limitations has recently been stated by the United States Supreme Court as follows:¹¹

"Statutes of limitations are primarily designed to assure fairness to defendants. Such statutes `promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared. The theory is that even if one has a just claim it is unjust not to put the adversary on notice to defend within the period of limitation and that the right to be free of stale claims in time comes to prevail over the right to prosecute them.' Order of Railroad Telegraphers v. Railway Express Agency, Inc., 321 U.S. 342, 348-349 64 S.Ct. 582, 88 L.Ed. 788. Moreover, the courts ought to be relieved of the burden of trying stale claims when a plaintiff has slept on his rights."

By setting a one year limitation for personal injury actions, the Connecticut legislature¹² has prescribed that, as a matter of Connecticut public policy, such claims become stale one year after an injury is sustained or discovered or reasonably should have been discovered. The underlying theory of Section 52-584, in the view of the Supreme Court in Burnett, is that even if plaintiffs have just personal injury claims, it is unjust not to put defendants on notice to defend within one year.

The Supreme Court in Burnett found timely notice to defend was given in a FELA suit commenced in a federal court in Ohio after the expiration of the applicable three year limitation period, where an identical action, in which defendant was served with process, had been commenced within three years in an Ohio state court having jurisdiction and there dismissed for improper venue. The Court concluded that plaintiff, by filing a prior timely action and serving defendant with process, demonstrated the diligence which statutes of limitations were designed to insure, and, therefore, plaintiff should not be deprived of his rights by procedural technicalities inherent in laying proper venue.¹³

Connecticut has made clear, by its Accidental Failure of Suit Statute,¹⁴ its intent to prevent timely actions which have failed "for any matter of form," including improper venue,¹⁵ from being time-barred merely because the limitation period expired pending failure of suit.

This Court recently decided, however, that a suit is timely within the meaning of the Connecticut Accidental Failure of Suit Statute only when it is commenced within the time limited by Connecticut law.¹⁶

Plaintiffs, by not bringing suit within the applicable one year limitation period of Section 52-584, failed to demonstrate the diligence which that statute, in the view of this Court, was designed to insure.

In so ruling, the Court rejects as mere semantics the distinction between the terms "maintained" and "brought" sought to be drawn by plaintiffs. The phrase, "no action * * * shall be brought," as used in Section 52-584, is construed by this Court to mean that no action shall be prosecuted in this Court — whether initially commenced here or maintained here upon transfer from another jurisdiction — unless, within the period prescribed by Section 52-584, the action has been commenced pursuant to Rule 3, Fed.R.Civ.P., in a court having jurisdiction.

The rule formulated by the Supreme Court in Burnett, which is designed to mitigate the harsh effect of statutes of limitations on diligent plaintiffs, presupposes that a prior timely action has been brought.¹⁷

This Court, having decided in the instant case that Connecticut law determines the timeliness of the prior action commenced in the Southern District of New York, concludes that it was not timely. Plaintiffs' action in this Court, therefore, is barred by Section 52-584, unless defendant, as plaintiffs urge, is equitably estopped from asserting that bar.

In view of the Court's holding that the timeliness of plaintiffs' prior action is determined by Connecticut law, it is not necessary for the Court to rule upon plaintiffs' claim that their prior action, as determined by New York law, was timely. To avert silence being construed as implied acceptance of plaintiffs' argument, the Court notes in passing that plaintiffs' original action commenced in the District Court for the Southern District of New York was not timely under New...