Laiuppa v. Moritz

• Decision Date: 01 November 2022
• Docket Number: AC 44506
• Citation: 216 Conn.App. 344,285 A.3d 391
• Parties: Paul LAIUPPA v. Mary MORITZ
• Court: Connecticut Court of Appeals

216 Conn.App. 344

285 A.3d 391

Paul LAIUPPA

v.Mary MORITZ

AC 44506

Appellate Court of Connecticut.

Argued February 7, 2022

Officially Released November 1, 2022

John L. Bonee III, West Hartford, with whom were Jesse A. Mangiardi and, on the brief, Eric H. Rothauser and Jay B. Weintraub, West Hartford, for the appellant (plaintiff).

Bridget M. Ciarlo, for the appellee (defendant).

Elgo, Cradle and Flynn, Js.

ELGO, J.

In this motor vehicle negligence action, the plaintiff, Paul Laiuppa, appeals from the summary judgment rendered by the trial court in favor of the defendant, Mary Moritz. On appeal, the plaintiff claims that the court (1) improperly determined that no genuine issue of material fact existed as to the applicability of the accidental failure of suit statute, General Statutes § 52-592, and (2) abused its discretion in granting the defendant's motion to reargue. We affirm the judgment of the trial court.

The record, viewed in a light most favorable to the plaintiff; see Martinelli v. Fusi , 290 Conn. 347, 350, 963 A.2d 640 (2009) ; reveals the following facts and procedural history. On June 21, 2016, the parties were involved in a motor vehicle collision allegedly caused by the defendant's negligence. The defendant at that time presented the investigating police officer with her driver's license and motor vehicle registration, both of which listed 168 Turkey Hills Road in East Granby (property) as her address. For eighteen months following that accident, the defendant continued to reside at the property. It is undisputed that she relocated to a nursing home facility in Windsor in December, 2017, and ceased being a Connecticut resident in January, 2018.

In June, 2018, the plaintiff sought to commence a civil action against the defendant (first action). On June 14, 2018, the plaintiff's counsel delivered the writ of summons and complaint to a Connecticut state marshal with direction to serve the defendant at the property. The plaintiff's counsel also notified the defendant's insurance company about the pending lawsuit sometime prior to July 3, 2018, and forwarded to the insurance company a "courtesy copy" of the summons and complaint.¹

On June 18, 2018, the marshal attempted abode service on the defendant by leaving the summons and complaint at the property. The marshal later testified at a deposition that the property appeared to be inhabited and that there were no obvious signs that it had been abandoned or recently sold. In addition, the marshal noted in his return of service that he had "checked with the East Granby [t]own [a]ssessor's [o]ffice [and] found [that] the defendant own[ed] the [property]."² At that time, the property was the defendant's "last known address" on file with the Department of Motor Vehicles (department). The summons and complaint thereafter were filed with the Hartford Superior Court.

On July 3, 2018, the defendant's counsel, who was appointed by the defendant's insurance company, filed an appearance on behalf of the defendant. Two days later, the defendant's counsel filed interrogatories, requests for production, and a motion for permission to serve supplemental discovery on the plaintiff.

On July 31, 2018, the defendant filed a motion to dismiss on the ground that the trial court lacked personal jurisdiction over her due to insufficient service of process. Specifically, the defendant argued that (1) the abode service was defective because she did not reside at the property and (2) she never received the summons and complaint. In support of her motion to dismiss, the defendant submitted the affidavit of Patricia A. M. Vinci, her attorney-in-fact. In her affidavit, Vinci averred that, at the time the marshal attempted service, the defendant neither owned nor resided at the property. Vinci explained that, after being hospitalized on December 19, 2017, "due to a health condition," the defendant relocated to a nursing home facility in Windsor on December 22, 2017. The defendant then moved to an assisted living residence in Rhode Island on January 26, 2018, and has not "returned to Connecticut since that date."³ Vinci also averred that the property was sold on June 4, 2018, and the sale closed on June 8, 2018.⁴ Vinci initially learned of the first action on July 13, 2018, through a reservation of rights letter sent by the defendant's insurance carrier. In response, the plaintiff filed a memorandum of law in opposition to the defendant's motion to dismiss, contending that the court did not lack personal jurisdiction because the defendant received notice of the action before the statute of limitations period expired.

The trial court granted the defendant's motion to dismiss on January 14, 2019. In its memorandum of decision, the court found that abode service was the only manner of service attempted. The court further found that "the marshal failed to make proper service upon the defendant when he left a copy of the [writ of] summons and complaint at the [property] because the defendant had not resided at that property since at least January 26, 2018, when she moved to Rhode Island." Citing Jimenez v. DeRosa , 109 Conn. App. 332, 341, 951 A.2d 632 (2008),⁵ the court held that the attempted abode service was insufficient to vest the court with jurisdiction because "the defendant was no longer residing at the [property] at the time of the attempted service and was no longer a Connecticut resident." As the court stated: "The evidence presented demonstrates that the defendant had been a resident of the state of Rhode Island for approximately six months prior to the attempted abode service, and, had the plaintiff searched the land records, he would have discovered that the defendant sold the [property] on June 8, 2018, ten days before the attempted service."⁶ Because "the plaintiff's attempted service over the defendant was legally defective," the court concluded that it lacked personal jurisdiction over the defendant and dismissed the action.⁷

Days later, the plaintiff commenced the present action pursuant to § 52-592.⁸ In response, the defendant filed an answer and, by way of special defense, asserted that the plaintiff's action was barred by the statute of limitations set forth in General Statutes § 52-584.⁹ The defendant thereafter filed a motion for summary judgment on the ground that the plaintiff's action was time barred because the plaintiff had failed to commence the first action "within the time limited by law," as required by § 52-592. Relying on our Supreme Court's decision in Rocco v. Garrison , 268 Conn. 541, 848 A.2d 352 (2004), the defendant argued that she did not have actual notice of the first action sufficient to bring the action under the protection of § 52-592.¹⁰

In a memorandum of law filed in opposition to the defendant's motion for summary judgment, the plaintiff contended that § 52-592 is remedial in nature and should be broadly construed. Because the marshal made a good faith and diligent effort to serve process at the property, and because Vinci was made aware of the first action before the limitation period expired, the plaintiff maintained that § 52-592 operated to preserve his action.

On February 10, 2020, the trial court heard oral argument on the defendant's motion for summary judgment. The defendant contended that the plaintiff's attempt to serve process was insufficient to commence the action for the purpose of § 52-592. Specifically, the defendant argued that (1) the attempted abode service did not commence the action because the defendant no longer lived at the property, (2) the insurance company's receipt of the summons and complaint did not provide the defendant with "actual notice" of the first action, and (3) Vinci was not provided with the summons and complaint until after the limitation period had expired. In response, the plaintiff argued that the marshal attempted to serve the defendant at the address listed on the police report, the department's records, and the records of the East Granby town assessor, and that there was no indication that the defendant had recently sold the property and no longer resided there. The plaintiff also asserted that the defendant's counsel, by filing an appearance, and Vinci, by receiving the notice of rights letter from the insurance company, both were provided with notice of the first action before the limitation period expired.

On May 6, 2020, the court denied the defendant's motion for summary judgment. In its memorandum of decision, the court determined that a genuine issue of material fact existed as to whether the first action was commenced within the statutory time period. The court reasoned that, although the defendant was not properly served, Vinci was "on notice" of the first action because she had received the reservation of rights letter from the defendant's insurance company before the statute of limitations expired.

On May 22, 2020, the defendant filed a motion to reargue with respect to the court's ruling on her motion for summary judgment.¹¹ The defendant contended that whether Vinci was "on notice" of the first action was irrelevant to the question of whether that action had been "commenced within the time limited by law" pursuant to § 52-592. Rather, citing Dorry v. Garden , 313 Conn. 516, 98 A.3d 55 (2014), and Rocco v. Garrison , supra, 268 Conn. 541, 848 A.2d 352, the defendant claimed that an action is "commenced," despite insufficient service of process, only when the defendant receives actual notice before the limitation period expires. The defendant then asserted that the Supreme Court in both Dorry and Rocco had equated "actual notice" with receipt of the summons and complaint by the defendant. The defendant further submitted that the court had failed to consider the uncontroverted averments set forth in the supplemental affidavit provided by Vinci, in which Vinci clarified that she was not provided with a copy of the summons and complaint until two days after the statute of limitations...