Laiuppa v. Moritz ( 2022 )

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PAUL LAIUPPA v. MARY MORITZ
(AC 44506)
Elgo, Cradle and Flynn, Js.
Syllabus
The plaintiff sought to recover damages from the defendant as a result of
a motor vehicle collision that allegedly was caused by the defendant’s
negligence. The plaintiff had sought to commence a previous action
against the defendant prior to the expiration of the two year statute of
limitations (§ 52-584) applicable to negligence actions. After a state
marshal left a copy of the writ of summons and complaint at the defen-
dant’s last known address on file with the Department of Motor Vehicles,
the plaintiff’s counsel sent a copy of the summons and complaint to the
defendant’s insurance company, and the defendant’s counsel, who had
been appointed by the insurance company, thereafter filed an appear-
ance and certain discovery motions on the defendant’s behalf. The defen-
dant subsequently filed a motion to dismiss the plaintiff’s action, which
was accompanied by an affidavit from V, her attorney-in-fact, who
averred that, prior to the time the marshal attempted abode service at
the defendant’s last known address, the defendant’s property at that
address had been sold and the defendant had relocated to Rhode Island.
V further averred that she first learned of the action through a reservation
of rights letter that was sent to her by the defendant’s insurance carrier
several weeks after the marshal attempted abode service. The trial court
granted the motion to dismiss and dismissed the action for lack of
personal jurisdiction over the defendant due to insufficient service of
process. After the plaintiff commenced the second action, which he
claimed was saved by the accidental failure of suit statute (§ 52-592),
the defendant filed a motion for summary judgment, alleging that the
court lacked subject matter jurisdiction on the ground that § 52-592 was
inapplicable because the original action had not been commenced within
the two year limitation period set forth in § 52-584. The court denied
the defendant’s motion for summary judgment, concluding that a genuine
issue of material fact existed as to whether the prior action was com-
menced within the statutory time period. The court reasoned that,
although the defendant was not properly served, V was on notice of the
prior action because she received the reservation of rights letter before
the statute of limitations expired. In a motion to reargue, the defendant
contended, inter alia, that the court had failed to consider the uncontro-
verted averments set forth in a supplemental affidavit V had provided
that clarified that she had not been provided with a copy of the summons
and complaint until two days after the statute of limitations period
expired. The court granted both the motion to reargue and the defen-
dant’s motion for summary judgment, concluding that it had overlooked
V’s supplemental affidavit when it initially denied the summary judgment
motion and that the undisputed facts supported the defendant’s claim
that neither she nor V had received effective, timely notice of the prior
action. On appeal to this court, the plaintiff claimed, inter alia, that the
court improperly concluded that § 52-592 did not operate to save his
action because a genuine issue of material fact existed as to whether
the prior action was timely commenced under § 52-592. Held:
1. The trial court properly determined that § 52-592 was inapplicable and
could not save the plaintiff’s action, as no genuine issue of material fact
existed as to whether the defendant received actual or effective notice
of the prior action within the time limited by law: the plaintiff’s con-
tention that it was of no consequence that the defendant did not have
notice of the original action until after the statute of limitations expired
could not be reconciled with the requirement of Rocco v. Garrison (268
Conn. 541), Dorry v. Garden (313 Conn. 516) and Kinity v. US Bancorp
(212 Conn. App. 791) that a defendant have actual or effective notice
of the action by way of receipt of the summons and complaint within
the time limited by law so as to bring the action within the confines of
§ 52-592, as it was undisputed that the defendant herself never received
the summons and complaint in the prior action, and, as V stated in her
affidavits, the plaintiff never provided V with the summons and com-
plaint until the attorney for the defendant’s insurance company emailed
them to her two days after the statute of limitations expired; moreover,
the filing of an appearance and discovery motions by counsel appointed
by the defendant’s insurance company, and V’s awareness of the prior
action, prior to the expiration of the limitation period, by way of the
reservation of rights letter, which did not include a copy of the summons
and complaint, did not provide the defendant with actual or effective
notice of the plaintiff’s action, as nothing in the reservation of rights
letter communicated to her the identity of the party bringing the action
against her or the gravamen of the complaint; furthermore, neither the
defendant’s insurance company nor its appointed counsel were agents
of the defendant for the purpose of receiving service of process such
that notice to them could be imputed to the defendant, as the plaintiff
failed to provide any authority to support that contention, which was
improper under both the statute (§ 52-57) governing service of process
on individuals and the statute (§ 52-62) permitting service of process
on the Commissioner of Motor Vehicles.
2. The plaintiff could not prevail on his claim that the trial court abused its
discretion in granting the defendant’s motion to reargue because the
court failed to identify a legitimate ground for reargument: although the
plaintiff contended that the court could not have misapprehended the
facts concerning V’s receipt of the summons and complaint because it
was in possession of her supplemental affidavit prior to denying the
defendant’s motion for summary judgment, this court interpreted the
trial court’s admission that it overlooked V’s supplemental affidavit
to mean that it initially misapprehended the legal significance of V’s
statement that she did not receive a copy of the summons and complaint
until after the statute of limitations expired, as the court was aware of
the facts alleged in the supplemental affidavit when it denied the motion
for summary judgment but only upon reconsideration did it appreciate
the import of her uncontroverted averments and correctly determine
that they were dispositive of the legal question of whether V had received
actual or effective notice of the prior action within the time limited by
law, as required by § 52-592.
(One judge concurring separately)
Argued February 7—officially released November 1, 2022
Procedural History
Action to recover damages for the defendant’s alleged
negligence, and for other relief, brought to the Superior
Court in the judicial district of Hartford, where the
court, Hon. A. Susan Peck, judge trial referee, denied
the defendant’s motion for summary judgment; there-
after, the court granted the defendant’s motion for rear-
gument; subsequently, the court, Hon. A. Susan Peck,
judge trial referee, vacated its denial of the defendant’s
motion for summary judgment, granted the defendant’s
motion for summary judgment and rendered judgment
thereon, from which the plaintiff appealed to this court;
thereafter, the court, Hon. A. Susan Peck, judge trial
referee, denied the defendant’s motion to dismiss.
Affirmed.
John L. Bonee III, with whom were Jesse A. Mangi-
ardi and, on the brief, Eric H. Rothauser and Jay B.
Weintraub, for the appellant (plaintiff).
Bridget M. Ciarlo, for the appellee (defendant).
Opinion
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 genu-
ine 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 follow-
ing 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 some-
time prior to July 3, 2018, and forwarded to the insur-
ance company a ‘‘courtesy copy’’ of the summons and
complaint.1
On June 18, 2018, the marshal attempted abode ser-
vice 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 inhab-
ited and that there were no obvious signs that it had
been abandoned or recently sold. In addition, the mar-
shal 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 per-
sonal 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 Patri-
cia 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 plain-
tiff 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 stat-
ute 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 resid-
ing 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 defec-
tive,’’ the court concluded that it lacked personal juris-
diction 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 judg-
ment 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 main-
tained that § 52-592 operated to preserve his action.
On February 10, 2020, the trial court heard oral argu-
ment 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 plain-
tiff 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 limita-
tion 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’’ pur-
suant to § 52-592. Rather, citing Dorry v. Garden, 313
Conn. 516, 98 A.3d 55 (2014), and Rocco v. Garrison,
supra, 268 Conn. 541, 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 defen-
dant further submitted that the court had failed to con-
sider 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 had expired. See footnote 10 of this opin-
ion.
After hearing argument from both parties, the court
granted the defendant’s motion to reargue, vacated its
prior ruling and rendered summary judgment in favor
of the defendant on January 4, 2021. In its memorandum
of decision, the court stated that, ‘‘[u]pon review of all
the motion papers and arguments of counsel in support
of the motion to reargue, as well as all the motion
papers filed in connection with the motion for summary
judgment, it became apparent that this court over-
looked [Vinci’s] second affidavit. . . . Therefore, the
court finds that undisputed facts exist to support the
defendant’s argument that the defendant or her agent
did not receive effective, timely notice of the [first
action].’’ (Citation omitted.) The court then noted that
‘‘[e]ffective notice [for purposes of § 52-592] appears
to require at a minimum that the defendant somehow
received a copy of the complaint prior to the expiration
of the statute of limitations.’’ (Internal quotation marks
omitted.) The court continued: ‘‘The uncontested facts
show that [Vinci] received a copy of the summons and
complaint on July 17, 2018, which is outside the thirty
day period granted by § 52-593a.’’ For that reason, the
court concluded that the notice provided by the plaintiff
‘‘was not sufficient to commence the action within the
meaning of § 52-592.’’ The court thus vacated its prior
ruling denying the defendant’s summary judgment
motion and rendered summary judgment in favor of the
defendant, after which the plaintiff appealed.
I
The plaintiff first claims that the court improperly
concluded that § 52-592 did not operate to save his
action. He submits that a genuine issue of material fact
exists as to whether the first action was ‘‘commenced
within the time limited by law,’’ as required by § 52-
592. The defendant, by contrast, contends that the court
properly rendered summary judgment in her favor
because the record lacks an evidentiary basis for a
necessary factual predicate to the operation of § 52-
592—namely, that she received actual or effective
notice of the first action prior to the expiration of the
limitation period. We agree with the defendant.
At the outset, we note the well established standard
that governs our review of the trial court’s decision to
grant a motion for summary judgment. ‘‘Practice Book
§ [17-49] provides that summary judgment shall be ren-
dered forthwith if the pleadings, affidavits and any other
proof submitted show that there is no genuine issue as
to any material fact and that the moving party is entitled
to judgment as a matter of law. . . . In deciding a
motion for summary judgment, the trial court must view
the evidence in the light most favorable to the nonmov-
ing party. . . . The party seeking summary judgment
has the burden of showing the absence of any genuine
issue [of] material facts which, under applicable princi-
ples of substantive law, entitle him to a judgment as a
matter of law . . . and the party opposing such a
motion must provide an evidentiary foundation to dem-
onstrate the existence of a genuine issue of material
fact. . . . [I]ssue-finding, rather than issue-determina-
tion, is the key to the procedure. . . . [T]he trial court
does not sit as the trier of fact when ruling on a motion
for summary judgment. . . . [Its] function is not to
decide issues of material fact, but rather to determine
whether any such issues exist. . . . Our review of the
decision to grant a motion for summary judgment is
plenary. . . . We therefore must decide whether the
court’s conclusions were legally and logically correct
and find support in the record.’’ (Internal quotation
marks omitted.) Buehler v. Newtown, 206 Conn. App.
472, 480–81, 262 A.3d 170 (2021).
In addition, we note that, ‘‘[i]n the context of a motion
for summary judgment based on a statute of limitations
special defense, [the defendants] typically [meet their]
initial burden of showing the absence of a genuine issue
of material fact by demonstrating that the action had
commenced outside of the statutory limitation period.
. . . When the plaintiff asserts that the limitations
period has been tolled by an equitable exception to the
statute of limitations, the burden normally shifts to the
plaintiff to establish a disputed issue of material fact
in avoidance of the statute. . . . Put differently, it is
then incumbent upon the party opposing summary judg-
ment to establish a factual predicate from which it can
be determined, as a matter of law, that a genuine issue
of material fact exists.’’ (Citation omitted; internal quo-
tation marks omitted.) Iacurci v. Sax, 313 Conn. 786,
799, 99 A.3d 1145 (2014).
On appeal, the plaintiff claims that the first action
was ‘‘commenced within the time limited by law’’ pursu-
ant to § 52-592 because the defendant’s agents had
notice of the action before the statute of limitations
expired. Specifically, the plaintiff argues that (1) Vinci
was aware of the first action within the limitation
period, and (2) the defendant’s insurance company and
appointed counsel each had actual notice of the first
action before the statute of limitations had expired. The
plaintiff contends that such awareness was sufficient
to bring the first action within the protection of § 52-
592. We disagree.
As our Supreme Court has explained in resolving a
related claim, ‘‘the plaintiff’s claim requires us to inter-
pret the phrase commenced within the time limited by
law contained in § 52-592 (a). The proper interpretation
of § 52-592 (a) is a question of statutory construction
over which our review is plenary. . . . That review
is guided by well established principles of statutory
interpretation . . . . As with all issues of statutory
interpretation, we look first to the language of the stat-
ute. . . . In construing a statute, common sense must
be used and courts must assume that a reasonable and
rational result was intended. . . . Furthermore, [i]t is a
basic tenet of statutory construction that the legislature
[does] not intend to enact meaningless provisions. . . .
[I]n construing statutes, we presume that there is a
purpose behind every sentence, clause, or phrase used
in an act and that no part of a statute is superfluous.
. . .
‘‘Section 52-592 (a) provides in relevant part: If any
action, commenced within the time limited by law, has
failed one or more times to be tried on its merits because
of insufficient service or return of the writ due to
unavoidable accident or the default or neglect of the
officer to whom it was committed, or because the action
has been dismissed for want of jurisdiction, or the
action has been otherwise avoided or defeated by the
death of a party or for any matter of form . . . the
plaintiff . . . 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.’’ (Citations omitted; internal quotation
marks omitted.) Dorry v. Garden, supra, 313 Conn. 525–
26.
‘‘When a suit has been started seasonably, the statute
extends the [s]tatute of [l]imitations for a period of one
year after the determination of the original action.’’ Ross
Realty Corp. v. Surkis, 163 Conn. 388, 393, 311 A.2d
74 (1972). Section 52-592 ‘‘is a savings statute that is
intended to promote the strong policy favoring the adju-
dication of cases on their merits rather than the disposal
of them on the grounds enumerated in § 52-592 (a).
. . . [H]owever . . . this policy is not without limits.
If it were, there would be no statutes of limitations.
Even the saving[s] statute does not guarantee that all
plaintiffs have the opportunity to have their cases
decided on the merits. It merely allows them a limited
opportunity to correct certain defects in their actions
within a certain period of time.’’ (Internal quotation
marks omitted.) Riccio v. Bristol Hospital, Inc., 341
Conn. 772, 780, 267 A.3d 799 (2022); see also Pintavalle
v. Valkanos, 216 Conn. 412, 417, 581 A.2d 1050 (1990)
(‘‘[a]lthough § 52-592 is a remedial statute . . . it
should not be construed so liberally as to render stat-
utes of limitation virtually meaningless’’ (citation omit-
ted)).
‘‘In interpreting the language of § 52-592 (a) . . . we
do not write on a clean slate, but are bound by our
previous judicial interpretations of the language and
the purpose of the statute.’’ Dorry v. Garden, supra,
313 Conn. 526. Our Supreme Court has twice addressed
the issue of when insufficient service of process none-
theless may be deemed to have ‘‘commenced’’ an action
‘‘within the time limited by law’’ pursuant to § 52-592.
In Rocco v. Garrison, supra, 268 Conn. 545, the plain-
tiffs filed their initial complaint with the United States
District Court for the District of Connecticut, after
which the clerk of that court returned the summons and
complaint to the plaintiffs for service on the defendant.
Pursuant to rule 4 (d) (1) of the Federal Rules of Civil
Procedure,12 the plaintiffs sent the summons and com-
plaint, and two copies of notice and request for waiver
of formal service to the defendant’s home address via
certified mail. Id., 545–46. Thereafter, the plaintiffs’
counsel received a return receipt from the United States
Postal Service indicating that the items had been deliv-
ered to the defendant four days before the statute of
limitations expired. Id., 546. The defendant, however,
did not sign and return the waiver of service form, and
the statute of limitations expired before the plaintiffs’
counsel could effect formal service of process. Id. The
District Court subsequently dismissed the plaintiffs’
claim for insufficient service of process. Id.The plaintiffs thereafter filed a second action in the
Superior Court pursuant to § 52-592. Id. In response,
the defendant moved for summary judgment ‘‘on the
ground that the plaintiffs’ federal action had not been
commenced within the meaning of the savings statute
due to a lack of proper service and that [§ 52-592] was
inapplicable and could not save the plaintiffs’ second
action.’’ Id., 547. The trial court agreed and rendered
summary judgment in favor of the defendant. Id. On
appeal, our Supreme Court noted that ‘‘the language of
§ 52-592 distinguishes between the commencement of
an action and insufficient service of process by provid-
ing that the action may fail following its commencement
because of insufficient service.’’ (Emphasis in original.)
Id., 550. The court then clarified that an action is ‘‘com-
menced,’’ as that term is used in § 52-592, when a defen-
dant receives ‘‘effective notice’’ of the action within the
time period prescribed by the statute of limitations. Id.,
551. Because ‘‘the summons, a copy of the complaint
and a notice of the action were delivered to the defen-
dant by certified mail four days before the expiration
of the statute of limitations’’; id., 553; the court con-
cluded that ‘‘the defendant received actual notice of the
action’’ within the limitation period, thereby bringing
it within the protection of § 52-592. Id., 552–53.
The Supreme Court further refined its interpretation
of the ‘‘commenced within the time limited by law’’
language of § 52-592 in Dorry v. Garden, supra, 313
Conn. 516. Dorry involved a wrongful death action
against medical practitioners in which the plaintiff sent
a summons and complaint to a marshal by overnight
delivery and requested that the defendants be served
‘‘in hand.’’ Id., 520. The marshal then attempted to serve
the defendants by leaving copies of the summons and
complaint at various professional or hospital offices.
Id. Because the marshal erroneously indicated on the
return of service that each defendant was served ‘‘in
hand,’’ however, the trial court dismissed the initial
claims against the defendant for insufficient service of
process. Id. The plaintiff subsequently commenced an
action in the Superior Court pursuant to § 52-592. Id.
The defendants moved for summary judgment on the
ground that the wrongful death action had not been
‘‘commenced’’ for purposes of that statute; the trial
court agreed and rendered summary judgment in their
favor. Id., 520–21.
On appeal, our Supreme Court explained that ‘‘in
Rocco, this court recognized that the phrase ‘com-
menced within the time limited by law’ [in § 52-592]
cannot mean effectuating proper service, and that effec-
tive notice to a defendant is sufficient.’’ Id., 529. The
court first noted that, because ‘‘the plaintiff produced
evidence demonstrating that [two of the defendants]
became aware of the first action and received a copy
of the writ, summons and complaint’’; id.; within the
limitation period, the trial court ‘‘improperly deter-
mined that [§ 52-592] did not save the plaintiff’s second
action against those defendants.’’ Id., 530.
The court then addressed the question of ‘‘whether
the additional thirty days for a marshal to serve process
under § 52-593a is part of the ‘time limited by law’ con-
tained in [§ 52-592].’’ Id., 531. The court answered that
query in the affirmative, stating: ‘‘[I]f a defendant has
effective notice within the thirty day period allowed for
a marshal to make service of the writ, summons and
complaint, the action will be considered commenced
for purposes of the savings statute.’’ (Emphasis added.)
Id., 533. Five sentences later in its decision, the court
similarly stated: ‘‘[W]e conclude that, applying the prin-
ciples of Rocco, if a defendant has actual notice within
the thirty days . . . for a marshal to make service, the
savings statute would operate to save the claim.’’13
(Emphasis added.) Id., 534. Because two additional
defendants had confirmed in deposition testimony that
they received copies of the summons and complaint
within the thirty day period of § 52-593a, the court held
that the trial court improperly determined that § 52-592
did not operate to save the plaintiff’s action against
them as well.14 Id., 534–35.
More recently, in considering when insufficient ser-
vice of process may be deemed to have ‘‘commenced’’
an action pursuant to § 52-592, this court addressed the
issue of whether something short of ‘‘notice by way of
receipt of the summons and complaint’’ could satisfy
the ‘‘actual or effective notice’’ standard articulated by
our Supreme Court in Rocco and Dorry. (Emphasis
omitted.) See Kinity v. US Bancorp, 212 Conn. App.
791, 848, 277 A.3d 200 (2022). This court began its analy-
sis with an extensive review of the Rocco and Dorry
decisions; see id., 840–46; and emphasized that, ‘‘[i]n
both Rocco and Dorry, [our Supreme Court] determined
that the original action had commenced for purposes
of § 52-592 because, even though service of the sum-
mons and complaint was defective, the defendants
actually received the summons and complaint, and
thereby got actual or effective notice of the action
within the time period prescribed by the applicable
statute of limitations.’’ (Emphasis in original.) Id., 848.
The court then noted that the plaintiff in Kinity had
presented no evidence that the defendant bank had
‘‘actually received the summons and complaint in the
original action.’’ (Emphasis in original.) Id.
In opposing the defendant’s motion for summary
judgment, the plaintiff in Kinity maintained that a genu-
ine issue of material fact existed as to whether the
defendant had actual notice of the original action due
to (1) certain communications between the plaintiff and
the defendant, and (2) the fact that counsel for the
defendant had filed an appearance in the original action.
Id., 849. This court rejected that contention, stating
in relevant part: ‘‘[T]he communications between the
plaintiff and the [defendant], and the [defendant’s]
belated appearance in the original action were insuffi-
cient to create a genuine issue of material fact that the
[defendant] had actually received the summons and
complaint, and thereby got actual or effective notice
of the original action.’’ Id., 850. Section 52-592 requires
that the original action must ‘‘have been commenced.
Pursuant to § 52-592, the original action may be com-
menced by way of insufficient or defective service
rather than good, complete, and sufficient service of
process. . . . However, [a]n action is commenced not
when the writ is returned but when it is served upon
the defendant. . . . In other words, the action is com-
menced in a timely manner for purposes of § 52-592
when the defendant receive[s] clear and unmistakable
notice of that action upon delivery of the summons,
complaint and related materials . . . . Pursuant to our
Supreme Court’s decisions in Rocco and Dorry, an
action is commenced within the meaning of § 52-592
when a defendant receives actual or effective notice of
the action, within the time period prescribed by law,
by way of receipt of the summons and complaint.’’ (Cita-
tions omitted; emphasis omitted; internal quotation
marks omitted.) Id., 851; see also id., 850 (‘‘the June,
2016 communications [between the parties] and the
[defendant’s] appearance were not sufficient to create
a genuine issue of material fact as to whether the [defen-
dant] had actual or effective notice of the original action
by way of receipt of the summons and complaint, as
required by Rocco and Dorry’’ (emphasis in original)).
In affirming the propriety of the summary judgment
rendered in favor of the defendant, this court then held
that ‘‘the plaintiff failed to provide the [trial] court with
any evidence that the [defendant] itself had actual or
effective notice of the original action by way of receipt
of the summons and complaint . . . .’’ (Emphasis in
original.) Id., 852. The court thus concluded that the
plaintiff had ‘‘failed to demonstrate the existence of a
genuine issue of material fact as to whether the defen-
dant had actual or effective notice of the original action
by way of receipt of the summons and complaint. As
a result, the [trial] court properly determined that § 52-
592 could not operate to save the plaintiff’s untimely
claims.’’ Id.
We are bound by the judicial construction of the
‘‘actual or effective notice’’ standard set forth in Kinity,
which was decided only months ago. See, e.g., First
Connecticut Capital, LLC v. Homes of Westport, LLC,
112 Conn. App. 750, 759, 966 A.2d 239 (2009) (‘‘this
court’s policy dictates that one panel should not, on its
own, reverse the ruling of a previous panel’’ (internal
quotation marks omitted)); see also State v. Houghta-
ling, 326 Conn. 330, 343, 163 A.3d 563 (2017) (Appellate
Court panel appropriately recognized it was bound by
that court’s own precedent), cert. denied, U.S. ,
138 S. Ct. 1593, 200 L. Ed. 2d 776 (2018). Whether to
revisit the ‘‘actual or effective notice’’ standard articu-
lated in Rocco and Dorry properly is the prerogative of
this state’s highest court. See Devine v. Fusaro, 205
Conn. App. 554, 582 n.20, 259 A.3d 655 (noting that
Appellate Court panel cannot overrule decision of
another panel and expressly inviting Supreme Court,
‘‘if provided an appropriate opportunity, to discuss
more fully and definitively the proper application’’ of
legal standard articulated in Supreme Court precedent),
cert. granted, 339 Conn. 904, 260 A.3d 1224 (2021).
The critical question, then, is whether the plaintiff in
the present case provided the court with any evidence
‘‘to demonstrate the existence of a genuine issue of
material fact as to whether the defendant had actual
or effective notice of the original action by way of
receipt of the summons and complaint’’ within the appli-
cable limitation period. Kinity v. US Bancorp, supra,
212 Conn. App. 852.
In its memorandum of law in opposition to the defen-
dant’s motion for summary judgment, the plaintiff
argued that ‘‘[t]he fact that the defendant did not have
notice until after the original statute of limitations is of
no consequence.’’ We disagree. That contention simply
cannot be reconciled with the precedent set in Rocco,
Dorry, and Kinity, which all require ‘‘actual or effective
notice’’ to a defendant within the time limited by law
to bring an action within the confines of § 52-592.
It is undisputed that the defendant herself never
received the summons and complaint in the first action
within ‘‘the time limited by law,’’ as required by § 52-
592. The court also was presented with uncontroverted
evidence, in the form of two sworn affidavits, demon-
strating that (1) the plaintiff never provided a copy of
the summons and complaint to Vinci, and (2) Vinci did
not receive a copy of those materials until the attorney
retained by the defendant’s insurance company emailed
them to her on July 17, 2018, two days after the statute
of limitations had expired.15
Furthermore, although Vinci received a reservation
of rights letter from the defendant’s insurance company
before the limitation period expired, such a letter does
not suffice for actual or effective notice of the plaintiff’s
action. Unlike the summons and complaint, which
apprise a defendant of the parties to the lawsuit and
the specific allegations made against her; see, e.g., Con-
solidated Motor Lines, Inc. v. M & M Transportation
Co., 128 Conn. 107, 109, 20 A.2d 621 (1941) (‘‘[I]n this
state, the time when the action is regarded as having
been brought is the date of service of the writ upon the
defendant. . . . That, in our judgment, is the sounder
rule, because only thus is the defendant put upon notice
of the purpose of the plaintiff to call upon [the defen-
dant] to answer to the claim in court.’’ (Citations omit-
ted.)); an insurance company’s reservation of rights
letter is merely an insurer’s offer to defend the insured
policyholder while preserving the right to later litigate
and disclaim the coverage.16 There is nothing in the
record to indicate that the reservation of rights letter
communicated to the defendant the identity of the party
bringing suit against her or the gravamen of the complaint
alleged.17 Moreover, as Vinci averred in her February
5, 2020 affidavit, ‘‘[a] copy of the [s]ummons and [c]om-
plaint was not enclosed with the [reservation of rights]
letter’’ that she received from the defendant’s insurance
company. Accordingly, Vinci cannot be said to have
received actual or effective notice within ‘‘the time lim-
ited by law,’’ as required by § 52-592.
The plaintiff alternatively contends that the defen-
dant’s insurance company and appointed counsel were
her ‘‘agents’’ for the purpose of receiving service of
process, such that any notice provided to the insurance
company or the attorney that it retained to represent
the defendant would be imputed to the defendant and
commence the action for the purposes of § 52-592. The
plaintiff thus argues that the defendant received actual
or effective notice of the first action because, prior to
the expiration of the limitation period, (1) her insurance
company received a copy of the summons and com-
plaint, and (2) the attorney retained by the insurance
company filed an appearance and discovery motions in
the Superior Court. We do not agree.
As an initial matter, we note that the plaintiff has not
provided any legal authority to support his contention
that the defendant’s insurance company was her
‘‘agent’’ for the purpose of receiving service of process.18
Even if we were to assume, arguendo, that the insurance
company was her agent, our statutory framework for
effecting service of process nonetheless establishes that
service provided to the insurance company, in lieu of
service provided to the defendant, would be improper.
General Statutes § 52-57 (a) specifies the proper manner
of service on individuals, providing in relevant part that
‘‘process in any civil action shall be served by leaving
a true and attested copy of it, including the declaration
or complaint, with the defendant, or at his usual place
of abode, in this state.’’ (Emphasis added.) That lan-
guage prescribes two proper methods of service on an
individual—personal service or abode service. Section
52-57 (a) does not provide for service on the individual’s
‘‘agent,’’ as do other statutory provisions pertaining to
service of process on municipalities, corporations, part-
nerships, and voluntary associations.19 See General Stat-
utes § 52-57 (b) through (e).
Our legislature has provided an exception to that
general rule in motor vehicle negligence actions in
which either (1) the defendant is a nonresident or (2)
the defendant’s last known address is located within
the state. See General Statutes §§ 52-6220 and 52-63.21 In
such situations, §§ 52-62 and 52-63 allow the plaintiff
to effectuate service of process by leaving a true and
attested copy of the summons and complaint at the
office of the Commissioner of Motor Vehicles (commis-
sioner), and by sending the same via certified or regis-
tered mail to the defendant’s last known address.
Although formal service of process under both stat-
utes requires the plaintiff to deliver the summons and
complaint to the commissioner, and to mail the same
to the defendant, this court has held that an action
commences for the purposes of § 52-592 when, pursuant
to § 52-62, a plaintiff serves the commissioner with pro-
cess but fails to properly mail a copy of the summons
and complaint to the defendant’s last known address.
See Megos v. Ranta, 179 Conn. App. 546, 551, 554–55,
180 A.3d 645, cert. denied, 328 Conn. 917, 180 A.3d
961 (2018). In so holding, this court explained that the
legislature explicitly intended to provide individuals
involved in motor vehicle accidents with an alternative
to in-person or abode service. See id., 554 (plain lan-
guage of § 52-62 (a) ‘‘provides that service on the com-
missioner has the same validity as service on the defen-
dant personally’’ (emphasis altered)). By contrast, our
legislature has not provided any exception that autho-
rizes a plaintiff to serve process upon a defendant’s
insurance company. We, therefore, cannot accept the
plaintiff’s unfounded contention that an action com-
mences for the purposes of § 52-592 when the defen-
dant’s insurance company, rather than the defendant,
receives actual notice of the action.
Finally, we conclude that the filing of an appearance
and certain discovery motions within the limitation
period by the attorney appointed by the insurance com-
pany to represent the defendant was not sufficient to
impute actual notice to the defendant, such that the
action was commenced pursuant to § 52-592. It is well
established that a party may file an appearance without
waiving the claim of insufficient service of process.
See, e.g., Morgan v. Hartford Hospital, 301 Conn. 388,
395–96, 21 A.3d 451 (2011); cf. Foster v. Smith, 91 Conn.
App. 528, 537, 881 A.2d 497 (2005). Moreover, there is
nothing in the record to indicate that the attorney
retained by the insurance company had any communi-
cation whatsoever with either the defendant or Vinci
prior to entering the appearance on July 3, 2018, or
filing discovery motions on July 5, 2018. To the contrary,
Vinci’s sworn affidavits indicate that she ‘‘first learned
of the [first action] on July 13, 2018,’’ when she received
the reservation of rights letter from the defendant’s
insurance company and did not learn the identity of
the plaintiff or the gravamen of his complaint until she
received an email from the attorney appointed by the
insurance company after the limitation period had
expired.
To the extent that Vinci became ‘‘aware’’ of the first
action prior to the expiration of that limitation period,
such general awareness does not suffice for the actual
or effective notice required to commence an action
under our law. The plaintiff has provided no legal
authority for his contention that mere awareness suf-
fices to constitute the commencement of a legal
action.22 The precedent of our Supreme Court, as well
as this court, instructs that only when a defendant is
provided notice of an action by way of receipt of a
summons and complaint does § 52-592 operate to save
the plaintiff’s claim.23 See Dorry v. Garden, supra, 313
Conn. 533–35; Rocco v. Garrison, supra, 268 Conn.
551–53; Kinity v. US Bancorp, supra, 212 Conn. App.
847–53. To the extent that the plaintiff invites this court
to depart from that precedent and relax the actual or
effective notice standard articulated therein, we decline
that invitation.24 As an intermediate appellate court, we
are not at liberty to modify that authority. See, e.g.,
Hartford Steam Boiler Inspection & Ins. Co. v. Under-
writers at Lloyd’s & Cos. Collective, 121 Conn. App.
31, 48–49, 994 A.2d 262, cert. denied, 297 Conn. 918,
996 A.2d 277 (2010), and case law cited therein.
In light of the foregoing, we conclude that the trial
court properly determined that no genuine issue of
material fact exists as to whether the defendant
received actual or effective notice of the first action
within the time limited by law. The court, therefore,
properly concluded that § 52-592 did not apply.
II
The plaintiff also claims that the court abused its
discretion in granting the defendant’s motion to rear-
gue. He contends that the court failed to identify a
legitimate ground for reargument, thereby providing the
defendant with an impermissible second bite at the
proverbial apple. We disagree.
The following legal principles and standard of review
guide our resolution of that claim. ‘‘We review the adju-
dication of a motion to reargue . . . for an abuse of
discretion . . . which means that every reasonable
presumption should be given in favor of the correctness
of the court’s ruling. . . . Reversal is required only
[when] an abuse of discretion is manifest or [when]
injustice appears to have been done. . . .
‘‘[T]he purpose of a reargument is . . . to demon-
strate to the court that there is some decision or some
principle of law which would have a controlling effect,
and which has been overlooked, or that there has been
a misapprehension of facts. . . . It also may be used
to address [alleged inconsistencies in the trial court’s
memorandum of decision as well as] claims of law that
the [movant] claimed were not addressed by the court.
. . . [A] motion to reargue [however] is not to be used
as an opportunity to have a second bite of the apple
[or to present additional cases or briefs which could
have been presented at the time of the original argu-
ment] . . . .’’ (Citations omitted; internal quotation
marks omitted.) Klass v. Liberty Mutual Ins. Co., 341
Conn. 735, 740–41, 267 A.3d 847 (2022).
In its memorandum of decision granting the defen-
dant’s motion to reargue, the court clarified that, in
originally denying the defendant’s motion for summary
judgment, it had overlooked the supplemental affidavit
submitted by Vinci. In that affidavit, Vinci averred that
she did not receive a copy of the summons and com-
plaint until after the limitation period had expired. Spe-
cifically, the court stated that, ‘‘[o]n February 13, 2020,
without seeking permission of the court to do so, or
otherwise notifying the court of her intention, the defen-
dant filed a supplemental reply . . . to the plaintiff’s
objection to which she appended a second affidavit
[from Vinci], which [Vinci] executed on February 11,
2020 . . . the day after oral argument on the motion.
The second affidavit clarified her first affidavit by stat-
ing for the first and only time that, although she learned
of the [first action] on July 13, 2018, at the time she
received a July 5, 2018 reservation of rights letter from
the insurance company, she did not receive a copy of
the summons and complaint until July 17, 2018, when
she received a copy of those documents from the defen-
dant’s counsel. Thus, on February 10, 2020, at the time
of oral argument, it was not clear to the court that
undisputed evidence had actually been submitted by
the defendant in support of the motion for summary
judgment to demonstrate that [Vinci] did not receive
the summons and complaint until after the statute of
limitations had expired.
‘‘Upon review of all the motion papers and arguments
of counsel in support of the motion to reargue, as well
as all the motion papers filed in connection with the
motion for summary judgment, it became apparent that
this court overlooked the second affidavit. . . . There-
fore, the court finds that undisputed facts exist to sup-
port the defendant’s argument that the defendant or
[Vinci] did not receive effective, timely notice of the
[first action].’’ (Citations omitted.) Concluding that no
genuine issue of fact existed as to whether Vinci
received actual or effective notice of the first action
within the limitation period, the court determined that
the defendant was entitled to summary judgment.
On appeal, the plaintiff claims that the court could
not have ‘‘misapprehended the facts’’ concerning Vinci’s
receipt of the summons and complaint because the
court (1) received the supplemental affidavit prior to
issuing its initial memorandum of decision denying the
defendant’s motion for summary judgment and (2)
found that Vinci had received the summons and com-
plaint after the statute of limitations had lapsed in the
initial memorandum of decision, indicating that the
court was aware of the facts contained in the supple-
mental affidavit when rendering its decision.
Although we agree with the plaintiff that the court
was in possession of the supplemental affidavit prior
to rendering its initial decision denying the defendant’s
motion for summary judgment, we cannot conclude
that the court abused its discretion in granting the
defendant’s motion to reargue. Rather, we interpret the
court’s admission that it ‘‘overlooked the [supplemen-
tal] affidavit’’ to mean that it initially misapprehended
the legal significance of Vinci’s statement that she did
not receive a copy of the summons and complaint until
July 17, 2018. Indeed, the court was aware of the facts
alleged in the supplemental affidavit when it initially
denied the defendant’s motion for summary judgment.
Only upon reconsideration, however, did the court
appreciate the import of those uncontroverted aver-
ments and correctly determine that they were disposi-
tive of the legal question as to whether Vinci received
actual or effective notice of the first action ‘‘within the
time limited by law,’’ as required by § 52-592. Indulging
every reasonable presumption in favor of the correct-
ness of the court’s ruling, we conclude that the court
did not abuse its discretion in granting the defendant’s
motion for reargument.
The judgment is affirmed.
In this opinion FLYNN, J., concurred.
1
The record includes the affidavit of David Nielsen, who was employed
by the law firm that represented the plaintiff in the first action. Nielsen
averred in relevant part that he ‘‘was employed by the law firm . . . from
approximately June 2017 through August 2018,’’ that ‘‘[o]ne of [his] responsi-
bilities was to work on the personal injury file’’ of the plaintiff, and that,
as part of those responsibilities, he ‘‘communicated . . . with [a] Claims
Representative for Central Insurance Companies [who] represented . . .
that his company insured the defendant . . . .’’ Although he averred that
he ‘‘sent a courtesy copy of the [s]ummons and [c]omplaint’’ to the insurance
company, Nielsen did not specify when he did so. Because an appearance
was filed by an attorney retained by the insurance company to represent
the defendant in the first action on July 3, 2018, that insurance company
necessarily received notice of the pendency of the action sometime prior
thereto.
2
In his deposition testimony, the marshal clarified that he did so by
conducting a search on the website of the East Granby assessor’s office.
3
Vinci further averred that the defendant ‘‘has not physically resided at
[the property] since December 19, 2017.’’
4
The defendant also submitted a certified copy of the warranty deed in
support of its motion to dismiss evidencing the sale of the property. The
deed was recorded on the East Granby land records on June 11, 2018, one
week before the marshal attempted abode service at the property.
5
In Jimenez v. DeRosa, supra, 109 Conn. App. 338, this court held that
abode service is not effective unless the property in question ‘‘is the defen-
dant’s home at the time when service is made.’’ (Emphasis added.) In so
stating, this court rejected the plaintiff’s claim that ‘‘abode service was
proper in light of the defendant’s failure to inform government agencies
that he was no longer a resident’’ at the property on which service was
made. Id., 337.
6
In its memorandum of decision, the court noted that, ‘‘[a]t oral argument
[on] the defendant’s motion to dismiss, the court granted the plaintiff’s
request for additional time to engage in further discovery regarding the facts
and circumstances surrounding the plaintiff’s attempted service of process.
The court also indicated that the plaintiff would be afforded the opportunity
to present any evidence gleaned through discovery at an evidentiary hearing
to address the jurisdictional issues presently before the court. The plaintiff
subsequently contacted the court and indicated . . . that an evidentiary
hearing was not required or requested, and that the court should proceed
to rule on the defendant’s motion to dismiss based on the evidence already
submitted.’’
7
The plaintiff did not appeal from that judgment of dismissal. Accordingly,
the propriety of the court’s determinations in the first action is not properly
before this court.
8
The marshal’s January 17, 2019 return of service indicates that process
was served in numerous ways, including service on the Commissioner of
Motor Vehicles pursuant to General Statutes § 52-62.
9
General Statutes § 52-584 provides in relevant part that ‘‘[n]o action to
recover damages for injury to the person, or to real or personal property,
caused by negligence, or by reckless or wanton misconduct . . . shall be
brought but within two years from the date when the injury is first sustained
or discovered or in the exercise of reasonable care should have been discov-
ered . . . .’’
The plaintiff’s injury accrued on June 21, 2016, the date of the motor
vehicle accident. As such, the limitation period initially was set to expire
on June 21, 2018.
General Statutes § 52-593a, however, operates to render an action timely
commenced so long as process is delivered to a marshal prior to the expira-
tion of the applicable statute of limitations and the marshal serves such
process within thirty days, even when the thirty day grace period extends
beyond the initial expiration date. See Doe v. West Hartford, 328 Conn. 172,
175, 177 A.3d 1128 (2018). Likewise, our Supreme Court has held that §§ 52-
592 and 52-593a work in conjunction so that an action may be ‘‘saved’’ for
the purposes of § 52-592 as long as the defendant received ‘‘actual notice’’
of the action within the thirty day grace period during which a marshal is
permitted to effectuate service. See Dorry v. Garden, 313 Conn. 516, 533–34,
98 A.3d 55 (2014). In the present case, the plaintiff delivered process to the
marshal on June 14, 2018, within the limitation period of § 52-584. Accord-
ingly, the final day by which the plaintiff could provide service of process
to the defendant in accordance with § 52-593a was July 15, 2018.
10
In support of her motion for summary judgment, the defendant submit-
ted several exhibits, including Vinci’s July 30, 2018 affidavit, in which Vinci
averred that she ‘‘first learned’’ of the first action on July 13, 2018, by way
of a letter sent from the defendant’s insurance carrier. The defendant also
submitted Vinci’s February 5, 2020 supplemental affidavit, in which Vinci
clarified that the letter that she received from the defendant’s insurance
carrier on July 13, 2018, ‘‘pertained to [its] reservation of rights with respect
to one of the claims made against [the defendant],’’ which was that ‘‘[a]
copy of the [s]ummons and [c]omplaint was not enclosed with [that] letter,’’
and that Vinci ‘‘was first provided a copy of the [s]ummons and [c]omplaint
on July 17, 2018, via email from counsel retained by the auto insurance
carrier to represent [the defendant].’’
11
The defendant also filed a motion to dismiss on May 29, 2020, arguing
that, because the plaintiff’s action was time barred and could not be saved
by § 52-592, the court was without subject matter jurisdiction to hear the
plaintiff’s claim. The court rejected the defendant’s motion, holding that the
failure to comply with § 52-592 cannot deprive the court of subject matter
jurisdiction because § 52-592 does not confer jurisdiction.
12
Rule 4 (d) (1) of the Federal Rules of Civil Procedure provides in relevant
part: ‘‘An individual . . . [who] is subject to service . . . has a duty to
avoid unnecessary expenses of serving the summons. The plaintiff may
notify such a defendant that an action has been commenced and request
that the defendant waive service of a summons. The notice and request must:
‘‘(A) be in writing and be addressed:
‘‘(i) to the individual defendant; or
‘‘(ii) for a defendant subject to service under Rule 4 (h), to an officer, a
managing or general agent, or any other agent authorized by appointment
or by law to receive service of process;
‘‘(B) name the court where the complaint was filed;
‘‘(C) be accompanied by a copy of the complaint, 2 copies of the waiver
form appended to this Rule 4, and a prepaid means for returning the form;
‘‘(D) inform the defendant, using the form appended to this Rule 4, of
the consequences of waiving and not waiving service;
‘‘(E) state the date when the request is sent;
‘‘(F) give the defendant a reasonable time of at least 30 days after the
request was sent—or at least 60 days if sent to the defendant outside any
judicial district of the United States—to return the waiver; and
‘‘(G) be sent by first-class mail or other reliable means.’’
The rule is ‘‘intended to encourage parties to save the cost of formal
service of a summons and complaint by providing that an individual who
is subject to service and who receives notice of an action in the prescribed
manner has a ‘duty’ to avoid the unnecessary costs of service of the summons
by complying with a request to waive formal service.’’ Rocco v. Garrison,
supra, 268 Conn. 545–46.
13
In neither Rocco nor Dorry did the Supreme Court define the term
‘‘effective notice’’ or articulate any distinction between ‘‘actual notice’’ and
‘‘effective notice.’’ Rather, the terms are used interchangeably in those deci-
sions.
14
A fifth defendant testified in a deposition that, after the marshal left
process for him with a risk management employee at New Milford Hospital,
that employee had ‘‘called him and notified him that a writ, summons and
complaint were delivered for him and that he received them several days
later.’’ Dorry v. Garden, supra, 313 Conn. 534. That defendant, however,
could not testify ‘‘as to the exact date’’ on which the employee had contacted
him. Id. For that reason, the Supreme Court concluded that ‘‘ ‘a critical
factual dispute’ ’’ existed as to whether that defendant received notice within
the thirty day period of § 52-593a that ‘‘cannot be resolved in the absence
of an evidentiary hearing.’’ Id., 535. The court thus concluded that the trial
court improperly dismissed the plaintiff’s action against that defendant and
remanded the case to the trial court for further proceedings. Id.
15
For the purposes of the present analysis, we assume, without deciding,
that notice provided to a defendant’s attorney-in-fact may be imputed to
the defendant so as to constitute the commencement of an action pursuant
to § 52-592.
16
See, e.g., United States v. Hebshie, 549 F.3d 30, 37 n.7 (1st Cir. 2008)
(‘‘[a] reservation-of-rights letter is a notice of an insurer’s intention not to
waive its contractual rights to contest coverage or to apply an exclusion
that negates an insured’s claim’’ (internal quotation marks omitted)); Sonson
v. United Services Automobile Assn., 152 Conn. App. 832, 837, 100 A.3d 1(2014) (insurer provided reservation of rights letter that ‘‘expressly informed
the [insured policyholder] of the possibility of denial of coverage on the
basis’’ of certain exclusions); 14A S. Plitt et al., Couch on Insurance (3d Ed.
Rev. 2020) § 202:39, pp. 202-143 through 202-145 (‘‘A reservation of rights
is a term of art designed to allow a liability insurer to provide a defense
while still preserving the option to later litigate and ultimately deny coverage.
. . . In modern times . . . it is more likely that such a reservation of rights
will be encountered in the form of a letter which the insurer sends . . .
stating the insurer’s willingness to commence the defense, but explicitly
stating that it does so with full reservation of specific rights.’’ (Footnotes
omitted.)).
17
Although the defendant’s counsel repeatedly referenced the reservation
of rights letter in her pleadings and stated that the letter was attached to
certain pleadings, the electronic record before us does not include a copy
of that letter. In discussing the substance of the reservation of rights letter in
its May 29, 2020 motion to dismiss, the defendant explained that it ‘‘contains
almost no information regarding the subject incident or the action. It does
not identify the plaintiff, it does not set forth the time and location of the
alleged incident, it does not set forth the claims alleged against the defendant
and/or the nature and/or extent of the plaintiff’s alleged injuries and/or
damages.’’ The plaintiff did not dispute the accuracy of that characterization
of the reservation of rights letter in its opposition to the defendant’s motion
to dismiss or any other pleading, and neither party submitted the reservation
of rights letter in support of their respective pleadings on the motion for
summary judgment.
18
The only authority cited by the plaintiff in his appellate brief concerns
the general proposition that an agent’s knowledge is imputed to the principal.
See Sousa v. Sousa, 173 Conn. App. 755, 773 n.6, 164 A.3d 702 (‘‘[n]otice
to, or knowledge of, an agent, while acting within the scope of his authority
and in reference to a matter over which his authority extends, is notice to,
or knowledge of, the principal’’), cert. denied, 327 Conn. 906, 170 A.3d 2(2017). He has provided no authority regarding the situation in which a
defendant’s alleged agent receives service of process purportedly on the
defendant’s behalf.
19
We note that rule 4 (e) (2) (C) of the Federal Rules of Civil Procedure
provides that an individual may be served by ‘‘delivering a copy of [the
summons and complaint] to an agent authorized by appointment or by law
to receive service of process.’’ (Emphasis added.)
Connecticut law contains no similar provision. ‘‘[I]t is a well settled princi-
ple of statutory construction that the legislature knows how to convey its
intent expressly . . . or to use broader or limiting terms when it chooses
to do so.’’ (Citation omitted.) Scholastic Book Clubs, Inc. v. Commissioner
of Revenue Services, 304 Conn. 204, 219, 38 A.3d 1183, cert. denied, 568 U.S.
940, 133 S. Ct. 425, 184 L. Ed. 2d 255 (2012). Accordingly, we adhere to the
plain language of § 52-57 (a), which limits service of process on an individual
to either in-person or abode service.
20
General Statutes § 52-62 provides in relevant part: ‘‘(a) Any nonresident
of this state who causes a motor vehicle to be used or operated upon any
public highway or elsewhere in this state shall be deemed to have appointed
the Commissioner of Motor Vehicles as his attorney and to have agreed that
any process in any civil action brought against him on account of any claim
for damages resulting from the alleged negligence of the nonresident or his
agent or servant in the use or operation of any motor vehicle upon any public
highway or elsewhere in this state may be served upon the commissioner
and shall have the same validity as if served upon the nonresident person-
ally. . . .
‘‘(c) Process in such a civil action against a nonresident shall be served
by the officer to whom the process is directed upon the Commissioner of
Motor Vehicles by leaving with or at the office of the commissioner, at least
twelve days before the return day of the process, a true and attested copy
thereof, and by sending to the defendant or his administrator, executor or
other legal representative, by registered or certified mail, postage prepaid,
a like true and attested copy, with an endorsement thereon of the service
upon the commissioner, addressed to the defendant or representative at his
last-known address. . . .’’
21
General Statutes § 52-63 provides in relevant part: ‘‘(a) Any person whose
last-known address is located in this state and who owns or operates a
motor vehicle, at the time of issuance of such person’s license or registration
shall be deemed to have appointed the Commissioner of Motor Vehicles as
his or her attorney and to have agreed that any process in any civil action
against such person on account of any claim for damages resulting from
his or her alleged negligence or the alleged negligence of his or her servant
or agent in the operation of any motor vehicle in this state may be served
upon the commissioner as provided in this section and shall have the same
validity as if served upon the owner or operator personally, even though
the person sought to be served has left the state prior to commencement
of the action or his or her present whereabouts is unknown.
‘‘(b) Service of civil process may be made on a motor vehicle operator
who (1) is licensed under the provisions of chapter 246, or (2) is unlicensed
and has a last-known address in this state by leaving a true and attested
copy of the writ, summons and complaint at the office of the Commissioner
of Motor Vehicles at least twelve days before the return day and by sending
such a true and attested copy at least twelve days before the return day,
by registered or certified mail, postage prepaid and return receipt requested,
to the defendant at his or her last address on file in the [department] if (A)
it is impossible to make service of process at the operator’s last address
on file in the [department], and (B) the operator has caused injury to the
person or property of another.
‘‘(c) Service of civil process may be made on the owner of a motor vehicle
who (1) has registered such motor vehicle in this state under the provisions
of chapter 246, or (2) has not registered such motor vehicle in this state
and whose last-known address is located in this state by leaving a true and
attested copy of the writ, summons and complaint at the office of the
Commissioner of Motor Vehicles at least twelve days before the return day
and by sending such a true and attested copy at least twelve days before
the return day, by registered or certified mail, postage prepaid and return
receipt requested, to the defendant at his or her last address on file in the
[department] if (A) it is impossible to make service of process at the owner’s
last address on file in the [department], (B) the owner has loaned or permit-
ted his motor vehicle to be driven by another, and (C) the motor vehicle
has caused injury to the person or property of another. . . .’’
22
As one court aptly noted, ‘‘[s]imply hearing . . . that a suit has been
brought against you cannot be effective notice to a defendant. . . . The
court knows of no case where an action has been determined to have been
commenced against a defendant [pursuant to § 52-592] based simply on the
fact that the defendant heard about it, but had not received or been served
a copy of the complaint.’’ Berlin v. Israel, Superior Court, judicial district
of Hartford, Docket No. CV-XX-XXXXXXX-S (June 2, 2015) (60 Conn. L. Rptr.
463, 465).
23
We reiterate that the record before us unequivocally indicates that nei-
ther the defendant nor Vinci received copies of the summons and complaint
prior to the expiration of the limitation period.
24
For that reason, we likewise reject the plaintiff’s contention that his
failure to provide actual or effective notice to the defendant should be
excused in light of the ‘‘diligent, good faith effort [that] was attempted to
serve the defendant.’’ Rocco, Dorry, and Kinity instruct that the salient
inquiry when considering the commencement of an action for purposes of
§ 52-592 concerns the adequacy of the notice provided to a defendant, rather
than the sincerity of a plaintiff’s efforts in attempting service. As this court
has observed, ‘‘[a]n attempt to serve a person affected improperly by making
abode service at a place where that party does not reside . . . will not
suffice to give actual or constructive notice.’’ Bove v. Bove, 77 Conn. App.
355, 363, 823 A.2d 383 (2003); see also Capers v. Lee, 239 Conn. 265, 271,
684 A.2d 696 (1996) (explaining that, although it is ‘‘remedial in its character,’’
§ 52-592 ‘‘applies only when there has been an original action that had been
commenced in a timely fashion’’ (internal quotation marks omitted)).