Pellecchia v. Town of Killingly

• Decision Date: 19 March 2012
• Docket Number: No. CV–11–6023280–S.,CV–11–6023280–S.
• Citation: 85 A.3d 63
• Court: Connecticut Superior Court
• Parties: Anthony J. PELLECCHIA, Administrator (Estate of Anthony E. Pellecchia), et al. v. TOWN OF KILLINGLY et al.

85 A.3d 63

Anthony J. PELLECCHIA, Administrator (Estate of Anthony E. Pellecchia), et al.

v.TOWN OF KILLINGLY et al.^*

No. CV–11–6023280–S.

Superior Court of Connecticut, Judicial District of Hartford, Complex Litigation Docket.

March 19, 2012.

Jason L. McCoy, Vernon, for the plaintiff.

Scott R. Ouellette, North Haven, for the named defendant et al.

BRIGHT, J.

IINTRODUCTION

This matter came before the court on the defendants' Town of Killingly, Anthony Shippee, and David Sabourin (Town defendants) motion to dismiss for lack of subject matter jurisdiction. The Town defendants argue that the court is without subject matter jurisdiction over this action because it was not commenced within the two year statute of limitations period for wrongful death claims, as required by General Statutes § 52–555. The Town defendants also assert that, in this matter (2011 action), the plaintiff may not rely on the "accidental failure of suit statute," General Statutes § 52–592, because a prior action commenced by the plaintiff, Docket No. HHD X04–CV–08–6003273 S (2008 action), concerning the same incident, was dismissed for wilful failure to follow clear orders of the court, and thus did not fail by way of mistake, inadvertence or excusable neglect. The plaintiff claims that a disciplinary dismissal is not categorically excluded from the accidental failure of suit statute, and in light of the policy preference of resolving a case on its merits, this court ought not to preclude him from bringing this action anew against the Town defendants.

IIBACKGROUND

This matter arises from a July 29, 2006 accident in which the decedent died when the motorcycle he was operating came into contact with downed, energized electrical lines. This action, the 2011 action, was commenced on June 1, 2011, nearly five years after the alleged accident.

The court repeats its summary of the procedural background in the 2008 action from its December 17, 2009 memorandum of decision (December, 2009 decision) in that action in which the Town defendants' motion for nonsuit against the plaintiff was granted, pages 1–5: "The plaintiff commenced this action with the service of his complaint, dated May 30, 2008.... On June 19, 2008, the Town defendants filed a request to revise the complaint (# 102). On August 14, 2008, the Town defendants filed a motion for nonsuit, seeking a nonsuit against the plaintiff for failure to revise his complaint within the time allowed by the Rules of Practice (# 107) (first Town motion for nonsuit). On August 18, 2008, defendants Connecticut Light and Power Company (CL & P), Northeast Utilities (NU), and Northeast Utilities Service Company (NUSC) (collectively ‘CL & P defendants') also filed a request to revise the complaint (# 105) (CL & P request to revise).

"The plaintiff requested a thirty day extension of time to respond to the CL & P request to revise (# 110). The plaintiff also moved for an extension of time, until September 25, 2008, to respond to the request to revise the complaint which was filed by the Town defendants. The court (Sferrazza, J. ) granted this second motion for extension of time on September 8, 2008 (# 111). Thereafter, [the] plaintiff neither timely objected to the requests to revise nor did he revise his complaint in conformance with either request to revise.

"On October 28, 2008, the CL & P defendants filed a motion for nonsuit against the plaintiff for his failure to file a revised complaint in accordance with their request to revise (# 133) (CL & P motion for nonsuit). No objection to the CL & P motion for nonsuit was filed by the plaintiff.¹ On November 18, 2008, the plaintiff filed untimely objections to the CL & P request to revise (# 146).

"On November 20, 2008, the court issued an order concerning the CL & P motion for nonsuit, as follows: ‘Pursuant to P.B. § 10–37,² the time by which the plaintiff was to file any objections to the defendants CL & P, NU, and NUSC's requests to revise elapsed. The plaintiff's objections, dated November 18, 2008 (# 146), are untimely. Accordingly, the requests are deemed to have been automatically granted. See P.B. § 10–37. Plaintiff shall file a revised complaint within 15 days of the date of this order.’ See # 133. Thus, instead of ordering a nonsuit at that time, the court afforded the plaintiff an additional extension of fifteen days, until December 5, 2008, to file a revised complaint in compliance with the CL & P request to revise.

"Similarly, on November 24, 2008, the court issued an order concerning the first Town motion for nonsuit, as follows: ‘Pursuant to P.B. § 10–37, the time by which the plaintiff was to file any objections to the defendants' (Town of Killingly, Shippee, and Sabourin) requests to revise elapsed. Accordingly, the requests are deemed to have been automatically granted. Plaintiff shall file a revised complaint by December 5, 2008.’ See # 107.

"Rather than filing such a revised complaint in compliance with the court's orders, on December 4, 2008, the plaintiff filed a request for leave to amend complaint (# 157), with a proposed amended complaint. The CL & P defendants filed an objection to the request for leave to amend on December 19, 2008 (# 159), since the amended complaint did not incorporate most of the revisions sought in the CL & P request to revise. On December 24, 2009, the Town defendants filed a motion for judgment of dismissal (# 161), based on the plaintiff's failure to revise his complaint in accordance with the court's November 24, 2008 order on their first motion for nonsuit (# 107). The court sustained the CL & P defendants' objection to the proposed amended complaint by order dated January 20, 2009.

"On February 10, 2009, the court issued an order concerning the Town defendants' motion for judgment of dismissal (# 161), which stated: ‘Denied without prejudice. The motion does not specify in what way the proposed amended complaint (# 157) did not comply.’

"On February 23, 2009, the plaintiff filed an ‘objection’ to the CL & P defendants' objection to the request for leave to amend and to the Town defendants' motion for judgment of dismissal (# 186), which ignored the court's January 20, 2009 and February 10, 2009 orders, and asserted that the amended complaint complied with the court's November 20, 2008 order. By order dated February 27, 2009, the court found the plaintiff's belated "objection" to be moot.

"The Town defendants filed a motion to strike, dated April 21, 2009 (# 277), which was addressed to counts fourteen, fifteen, and nineteen of the plaintiff's December, 2008 proposed amended complaint.

"Thereafter, the court considered the CL & P defendants' motion for dismissal with prejudice, or alternatively, for an order of nonsuit (# 182) and issued its memorandum of decision on May 13, 2009 (# 242), granting a nonsuit as to the claims against the CL & P defendants. Therein, at pages 5 and 12, the court stated that the plaintiff's proposed amended complaint, filed on December 4, 2008 (# 157), was not operative.

"At the hearing which was held on June 12, 2009, concerning the Town defendants' motion to strike, which neither the plaintiff nor his counsel attended, the court reiterated that the plaintiff's December, 2008 proposed amended complaint was not operative, and, therefore, there was no complaint to strike.

"On September 1, 2009, the court issued an order sustaining the Town defendants' June 19, 2009 objection (# 257) to the plaintiff's amended revised substitute complaint, dated June 5, 2009 (# 249). Once again, the plaintiff had presented an amendment which did not incorporate the revisions requested by the Town defendants in their June, 2008 request to revise (# 107), and which violated the court's November 24, 2008 order concerning the required revisions (# 107). By memorandum of decision, dated October 23, 2009 (# 313), the court denied the plaintiff's motion for reconsideration of the September 1, 2009 order." [ Pellecchia v. Connecticut Light & Power Co., Superior Court, judicial district of Hartford, Docket No. HHD X04–CV–08–6003273 S, 2009 WL 5511375 (December 17, 2009) (Shapiro, J. ).]

At page 7 of the December, 2009 decision, the court stated, "The plaintiff thus continues to ignore the clear language of the court's order (# 107), in which the plaintiff was explicitly informed by the court that, in accordance with the Practice Book, the Town defendants' requests to revise the complaint were ‘deemed to have been automatically granted. ’ ... In addition, the court cited Practice Book § 10–37, quoted above, which also expressly so provides. There is no reasonable basis for the plaintiff to assert that he complied with the court's order in his December, 2008 proposed amended complaint.

"Although the plaintiff was afforded extensions of time to file an appropriately revised complaint, he did not do so. The court already has found, in its May 13, 2009 decision (# 242), that the plaintiff's continued failure to comply with the court's clear orders evidences a wilful failure to do so. His defiance of the court's orders continues." (Emphasis in original.)

At page 11 of the December, 2009 decision, the court stated, "More than [one] year after the plaintiff was ordered to revise his complaint in conformance with the Town defendants' request to revise, he steadfastly refuses to do so."

At page 13 of the December, 2009 decision, the court stated: "Here, the plaintiff's continued failure to properly revise his complaint in compliance with the Practice Book and the court's orders evidences a lack of due regard to necessary rules of procedure.... The plaintiff may not be permitted to ignore and not comply with the court's orders and the Practice Book. In so doing, the progress of the pleadings has been inexcusably delayed for over a year. The return day in this matter was June 17, 2008. Eighteen months later, as a result of the plaintiff's noncompliance, there is still no properly revised complaint, and no progress towards closing...