Capers v. Lee

• Decision Date: 26 November 1996
• Docket Number: No. 15473,15473
• Court: Connecticut Supreme Court
• Parties: Paul M. CAPERS, Administrator (Estate of Donnie J. Capers) v. Warren J. LEE et al.

Page 696

684 A.2d 696

239 Conn. 265

Paul M. CAPERS, Administrator (Estate of Donnie J. Capers) v. Warren J. LEE et al.

No. 15473.

Supreme Court of Connecticut.

Argued Sept. 26, 1996.

Decided Nov. 26, 1996.

Peter N. Upton, Farmington, for appellant (plaintiff).

Louis B. Blumenfeld, with whom was William J. Scully, Hartford, for appellees (defendants).

Before CALLAHAN, C.J., and BORDEN, BERDON, KATZ and McDONALD, JJ.

KATZ, Associate Justice.

The sole issue on appeal is whether the plaintiff's notice of claim filed with the office of the claims commissioner of the state of Connecticut (claims commissioner), pursuant to General Statutes § 4-147, ¹ constitutes an "action" under General Statutes § 52-592 ² so as to save the present wrongful death action, which was commenced more than four years after the alleged incident, from being time barred. We conclude that it does not.

The following facts are undisputed. On February 21, 1995, the plaintiff, Paul M. Capers, administrator of the estate of Donnie J. Capers, filed this complaint in the Superior Court in the judicial district of Hartford-New Britain at Hartford, alleging that on or about June 1, 1990, the plaintiff's decedent had been struck and killed by a motor vehicle owned by the defendant state and used by the department of public safety, the division of the state police, as a police cruiser. According to the plaintiff's allegations, the vehicle, operated in a negligent and careless manner by the defendant Warren J. Lee, while acting in his capacity as an agent, servant or employee of the state police, was insured by the state against personal injury and property damage through a policy maintained by Aetna Life and Casualty Company. The plaintiff alleged that as a consequence of Lee's negligent and careless driving, the plaintiff's decedent sustained multiple fractures and massive internal injuries, the combination of which resulted in his death.

The plaintiff further alleged that, believing it was necessary in accordance with § 4-147, he had filed a notice of claim with the office of the claims commissioner on or about October 18, 1990, seeking money damages and authorization to initiate an action against the state for Lee's negligence. ³ Thereafter, on December 16, 1994, the claims commissioner granted the defendants' motion to dismiss the claim, concluding that, because General Statutes § 52-556 ⁴ authorized the plaintiff to bring a direct action in the Superior Court against the defendants, General Statutes § 4-142(2) ⁵ deprived the claims commissioner of the authority to decide the claim. ⁶ Accordingly, the claims commissioner dismissed the claim. ⁷ On the basis of the dismissal of his claim for want of jurisdiction, the plaintiff brought the present action, specifically invoking the authority of § 52-592, the accidental failure of suit statute, which permits, inter alia, the filing of a new action within one year of the dismissal of the original action for want of jurisdiction.

On May 10, 1995, the defendants moved to dismiss the present action because it had been brought more than four years after the accident in issue. ⁸ The defendants argued, inter alia, that § 52-592 did not apply because a notice of claim to the claims commissioner is not an "action" within the meaning of that statute. The plaintiff responded that by his notice of claim against the defendant he had commenced suit, thereby falling within the purview of § 52-592. The trial court agreed with the defendants that the plaintiff had not satisfied the requirements of, and therefore could not take advantage of, § 52-592, and dismissed the plaintiff's action as untimely. ⁹ The plaintiff appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199(c). We affirm the judgment of the trial court.

The issue before the court is whether the plaintiff has satisfied the requirements of the accidental failure of suit statute so as to be covered by its umbrella. Isaac v. Mount Sinai Hospital, 210 Conn. 721, 728-29, 557 A.2d 116 (1989). We focus our attention on the one relevant criterion in dispute: whether the plaintiff's "notice of claim" with the claims commissioner was an "action" within the meaning of § 52-592. We begin with the pertinent provision at issue. Section 52-592(a) provides: "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 avoided or defeated ... for any matter of form ... 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." As we have stated, "[t]he provision is remedial in its character. It was passed to avoid hardships arising from an unbending enforcement of limitation statutes." Isaac v. Mount Sinai Hospital, supra, at 728, 557 A.2d 116. As we have also stated, however, "the extension of time [in § 52-592 is] in terms made applicable to all cases where a 'suit ' seasonably begun [has] failed for the causes stated...." (Emphasis added.) Id., at 729-30, 557 A.2d 116. Therefore, § 52-592 applies only when there has been an original action that had been commenced in a timely fashion.

Although the term action is not defined within the terms of § 52-592, we have generally defined the term as "the lawful demand of one's right in a court of justice; and in this sense it may be said to include any proceeding in such a court for the purpose of obtaining such redress as the law provides." (Emphasis added; internal quotation marks omitted.) Id., at 730, 557 A.2d 116. By contrast, claim is defined as a "petition for the payment or refund of money by the state or for permission to sue the state." General Statutes § 4-141. When the exceptions of § 4-142 do not apply, General Statutes § 4-160(a) ¹⁰ makes it clear that a claimant can only institute an action against the state in a court of justice once the claims commissioner hears the claim; General Statutes § 4-151; causes a record to be made of such claim; General Statutes § 4-153; and authorizes the claimant to sue the state, or suit is permitted by the General Assembly. General Statutes § 4-159. Therefore, a claimant falling outside the exceptions of § 4-142 must bring a claim before commencing an action. That claim is not a demand, a suit or an action in a court of justice but, rather, is a petition seeking permission to proceed with an action against the state in a court of justice.

Furthermore, in an action authorized by the legislature or the claims commissioner, the claimant must allege when authorization to sue was granted; General Statutes § 4-160(b); because that date triggers the time frame within which the action must be brought. Section 4-160(c) provides in relevant part: "No such action shall be brought but within one year from the date such authorization to sue is granted. With respect to any claim pending before the claims commissioner on October 1, 1992, or presented to the claims commissioner on or after said date for which authorization to sue is granted, any statute of limitation applicable to such action shall be tolled until the date such authorization to sue is granted." (Emphasis added.) The use of the word claim in conjunction with the word action in the same subsection of the statute suggests that the legislature "acted with complete awareness of their different meanings"; Hartford Principals' & Supervisors' Assn. v. Shedd, 202 Conn. 492, 506, 522 A.2d 264 (1987); and that it intended the terms to have different meanings. Hinchliffe v. American Motors Corp., 184 Conn. 607, 613, 440 A.2d 810 (1981) (use of different terms within same sentence of statute "plainly" implies differing meanings intended), aff'd, 192 Conn. 252, 470 A.2d 1216 (1984); see also Plourde v. Liburdi, 207 Conn. 412, 416, 540 A.2d 1054 (1988). Accordingly, we conclude that the terms claim as set forth in § 4-141 and action as contained within § 52-592 have different meanings.

The plaintiff argues, nonetheless, that because the filing of the claim is the necessary first step before a claimant can bring an action against the state, the claims process is "integral to the filing of suit and can only be so understood as an 'action' against the state...." We disagree. Because there was an express waiver of sovereign immunity; see General Statutes § 52-556; the plaintiff was not required to present his claim to the claims commissioner either for payment or authorization to sue the state. Clearly, had the plaintiff's claim not been "authorized by law," or otherwise excepted by § 4-142, he would have been required to file the notice of claim for there to be a waiver of the state's sovereign immunity. Duguay v. Hopkins, 191 Conn. 222, 232, 464 A.2d 45 (1983). Under those circumstances, however, that notice of claim still would not constitute an action. When, after applying the governing criteria, either the claims commissioner or the General Assembly grants the claimant permission to bring an action against the state, pursuant to §§ 4-159 or 4-160(a), the claimant cannot merely rely on the earlier filed notice. Rather, the empowered claimant must commence a separate action in the Superior Court using civil process. See General Statutes § 4-160(d). Without question, the notice of claim does not satisfy the requirements of General Statutes § 52-45a ¹¹ ("Civil 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 plaintiff's complaint."). ¹²

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