Laiuppa v. Moritz

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LAIUPPA v. MORITZ—CONCURRENCE
CRADLE, J., concurring in the result. Because we are
bound by this court’s holding in Kinity v. US Bancorp,
212 Conn. App. 791, 277 A.3d 200 (2022), which was
argued before this court on January 20, 2022, only eigh-
teen days prior to argument in this case, I am obligated
to concur with the result reached by the majority in
this case. Although we are bound by an interpretation
of Supreme Court precedent regarding the accidental
failure of suit statute, also referred to as ‘‘the savings
statute,’’ General Statutes § 52-592, as articulated by
this court in Kinity, it is my opinion that that interpreta-
tion is unnecessarily narrow and restrictive.
Although the majority aptly recites the applicable
legal principles, I nevertheless write separately to
emphasize that ‘‘[o]ur Supreme Court has long held that
§ 52-592 is remedial and is to be liberally interpreted.’’
(Internal quotation marks omitted.) Tellar v. Abbott
Laboratories, Inc., 114 Conn. App. 244, 250, 969 A.2d
210 (2009). ‘‘[B]y its plain language, [§ 52-592] is
designed to prevent a miscarriage of justice if the [plain-
tiff fails] to get a proper day in court due to the various
enumerated procedural problems. . . . It was adopted
to avoid hardships arising from an unbending enforce-
ment of limitation statutes. . . . Its purpose is to aid
the diligent suitor. . . . Its broad and liberal purpose
is not to be frittered away by any narrow construction.
The important consideration is that by invoking judicial
aid, a litigant gives timely notice to his adversary of a
present purpose to maintain his rights before the
courts.’’ (Internal quotation marks omitted.) Davis v.
Family Dollar Store, 78 Conn. App. 235, 240, 826 A.2d
262 (2003), appeal dismissed, 271 Conn. 655, 859 A.2d
25 (2004). Ultimately, ‘‘looming behind § 52-592 is the
overarching policy of the law to bring about a trial on
the merits of a dispute whenever possible and to secure
for the litigant [his or her] day in court.’’ (Internal quota-
tion marks omitted.) Larmel v. Metro North Commuter
Railroad Co., 200 Conn. App. 660, 678, 240 A.3d 1056(2020), aff’d, 341 Conn. 332, 267 A.3d 162 (2021). ‘‘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, 313 Conn. 516, 526,
98 A.3d 55 (2014).
The majority thoroughly discusses the two cases in
which our Supreme Court has considered the issue of
when insufficient service of process may be deemed to
have ‘‘commenced’’ an action ‘‘within the time limited
by law’’ pursuant to § 52-592. In both of those cases,
Rocco v. Garrison, 268 Conn. 541, 848 A.2d 352 (2004),
and Dorry v. Garden, supra, 313 Conn. 516, our
Supreme Court noted the remedial nature of § 52-592
and explained that § 52-592 distinguishes between the
‘‘commencement’’ of an action, on the one hand, and
insufficient service of process, on the other, ‘‘by provid-
ing that the action may fail following its commencement
because of insufficient service.’’ (Emphasis altered.)
Rocco v. Garrison, supra, 550. In both cases, our
Supreme Court held that ‘‘commenced within the time
limited by law’’ cannot ‘‘be construed to mean good,
complete and sufficient service of process . . . .’’
Rocco v. Garrison, supra, 551; see also Dorry v. Garden,
supra, 529.
In those cases, the court held that the actions were
‘‘commenced’’ within the meaning of § 52-592 because
the defendants received the writ of summons and com-
plaint within the applicable statute of limitations. In
neither case, however, did the court hold that the
receipt of a copy of the summons and complaint was
required to commence an action pursuant to the savings
statute. In other words, although our Supreme Court’s
decisions in Rocco and Dorry hold that actual notice
by way of receipt of a copy of the summons and com-
plaint is sufficient to commence an action within the
meaning of § 52-592, neither case establishes that
receipt of the summons and complaint is the exclusive
manner by which an action may commence under the
statute. This court did just that, however, in Kinity.
In Kinity, this court held: ‘‘Pursuant to our Supreme
Court’s decisions in Rocco and Dorry, an action is com-
menced within the meaning of § 52-592 when a defen-
dant receives actual or effective notice of the action,
within the time period prescribed by law, by way of
receipt of the summons and complaint.’’ Kinity v. US
Bancorp, supra, 212 Conn. App. 851. In my view, neither
Rocco nor Dorry concluded that a defendant must have
‘‘actual or effective notice of the original action by way
of receipt of the summons and complaint’’; (emphasis
omitted) id., 850; in order to fall within the protection
of § 52-592. Rather, in Rocco and Dorry, the court held
that the actions were commenced in those cases
because the defendants had received the summons and
complaint prior to the expiration of the statute of limita-
tions.
In my opinion, to interpret § 52-592 as narrowly as
this court did in Kinity contradicts the ‘‘broad and
liberal purpose’’ of the statute. If the legislature had
intended to limit the savings statute to those cases in
which a defendant receives a copy of the summons and
complaint within the applicable statute of limitations,
it easily could have done so.
As the majority notes, ‘‘as a matter of policy, one
panel of this court will not overrule another panel’s
decision in the absence of en banc consideration.’’
Devine v. Fusaro, 205 Conn. App. 554, 581–82 n.20, 259
A.3d 655, cert. granted, 339 Conn. 904, 260 A.3d 1224(2021). Accordingly, I acknowledge that we are bound
by this court’s interpretation, in Kinity, of Rocco and
Dorry, and, for that reason, I must concur with the
result reached by the majority.