Larmel v. Metro North Commuter Railroad Co.

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
LARMEL v. METRO NORTH COMMUTER
RAILROAD CO.—DISSENT
EVELEIGH, J., dissenting. I respectfully dissent. I
disagree with the majority’s conclusions that (1) the
judgment in the first action was one on the merits for
purposes of General Statutes § 52-592 (a), and (2) the
determination of whether the first action failed as a
matter of form under the accidental failure of suit stat-
ute did not require a factual determination by the trial
court of the plaintiff’s conduct. Contrary to the majority,
I would conclude that a judgment in the first action
rendered as a result of compulsory arbitration pursuant
to General Statutes § 52-549z does not result from a
trial on the merits so as to necessarily preclude applica-
bility of the accidental failure of suit statute. Specifi-
cally, I would conclude that the trial court must make
a factual determination as to whether the failure of
the plaintiff, Phyllis Larmel, to demand a trial de novo
within twenty days of the issuance of the arbitration
decision caused the first action to fail as a matter of
form. Accordingly, I would reverse the judgment dis-
missing the action and remand the case to the trial
court for further factual findings.
I
I begin by noting my agreement with the statement
of facts in the majority’s opinion and with the majority’s
discussion of our standard of review. I do not, however,
fully agree with its examination of the governing legal
principles surrounding what constitutes a trial on the
merits. Specifically, I believe that the majority improp-
erly found inapplicable our Supreme Court’s decision
in Nunno v. Wixner, 257 Conn. 671, 778 A.2d 145 (2001),
which I find to be controlling precedent in the pres-
ent matter.
In Nunno, our Supreme Court addressed the issue
of whether the provisions of General Statutes (Rev. to
2001) § 52-192a,1 concerning an offer of judgment, apply
to a judgment rendered as a result of a mandatory
arbitration proceeding pursuant to General Statutes
§ 52-549u,2 which is the same statutory scheme under
consideration in the present case. Id., 674. Because the
language of § 52-192a (b) specifically indicates that the
statute is applicable only after the action has gone to
trial, the court’s central determination was whether the
court-mandated arbitration proceeding constituted a
trial for purposes of the offer of judgment statute. See
id., 676–77. Although the present matter concerns the
accidental failure of suit statute, which is different from
the one at issue before the court in Nunno, namely, the
offer of judgment statute, I believe that the underlying
reasoning and analysis employed by our Supreme Court
in distinguishing between a judgment rendered as a
result of an arbitration decision and one resulting from
an adjudication on the merits, specifically in the form
of a trial, is decisive here and should have been followed
by the majority in rendering its decision.
The court in Nunno interpreted the definition of a
trial narrowly. It stated: ‘‘Black’s Law Dictionary (7th
Ed. 1999) defines trial as ‘[a] formal judicial examina-
tion of evidence and determination of legal claims in
an adversary proceeding.’ It further defines ‘judicial’ as
‘[o]f or relating to, or by the court’ and ‘determination’
as ‘[a] final decision by a court or administrative agency
. . . .’ ’’ Nunno v. Wixner, supra, 257 Conn. 681. After
highlighting the procedural differences between arbi-
tration and judicial proceedings3 and recognizing the
informality of arbitration proceedings, the court con-
cluded that the arbitration was not conducted as a trial
such that it would trigger the right to imposition of
interest ‘‘after trial’’ pursuant to the offer of judg-
ment statute.4
In my view, the court’s analysis is directly applicable
to the present matter. The decision in Nunno is not
limited to its facts. That the analysis in Nunno was
conducted pursuant to a different statute is of no
moment, because the underlying issue of whether an
arbitration is fundamentally analogous to a trial for
policy reasons is the same. In the present case, the
arbitration suffers from largely the same procedural
deficiencies as in Nunno. Specifically, no testimony
was offered by either party; instead, the parties only
submitted exhibits, including the plaintiff’s deposition,
medical records and bills, and a report following a medi-
cal records review. Further, there was no cross-exami-
nation, there was no objection to evidence, and the
arbitrator did not have to provide reasons for his conclu-
sions. Also, the decision of the arbitrator, a nonjudicial
officer, is nonbinding as long as the requisite pleading
is filed.
Because our Supreme Court has spoken on the issue,
we are bound by the court’s holding that, where an
arbitration lacks the formalities and hallmarks of a judi-
cial proceeding, as it does here, pursuant to the statu-
tory scheme of § 52-549 et seq., it cannot constitute a
trial.5 See Cannizzaro v. Marinyak, 139 Conn. App. 722,
734, 57 A.3d 830 (2012) (‘‘this court, as an intermediate
body, is bound by Supreme Court precedent’’ (internal
quotation marks omitted)), aff’d on other grounds, 312
Conn. 361, 93 A.3d 584 (2014). Accordingly, the plain-
tiff’s first action was not tried on the merits, so as to
not preclude application of the accidental failure of
suit statute.6
II
I must next determine whether the action failed for
any of the reasons enumerated in the statute—of partic-
ular relevance to the present matter is failure as a matter
of form. This necessarily involves a factual finding by
the trial court as to the plaintiff’s conduct and whether
such conduct led to the first action failing for procedural
reasons, thus rendering the statute applicable to the
plaintiff’s second action. Therefore, I disagree with the
majority’s statement that, even if the first action were
not tried on its merits, ‘‘no purpose would be served
by such a factual determination.’’
The majority states that ‘‘[n]egligence of a party or her
counsel for judgments entered upon default or similar
procedural reasons do not provide relief to the plain-
tiff.’’ (Emphasis added.) Significantly, however, the
majority only discusses the context of judgments ren-
dered upon default and not other ‘‘similar procedural
reasons . . . .’’ It cites to only one case, State v. Ritz
Realty Corp., 63 Conn. App. 544, 548–49, 776 A.2d 1195
(2001), which is limited to the context of General Stat-
utes § 52-212, for the proposition that a party’s negli-
gence is an insufficient cause for opening a judgment.
Yet, this court recognized in Skinner v. Doelger, 99
Conn. App. 540, 559, 915 A.2d 314, cert. denied, 282
Conn. 902, 919 A.2d 1037 (2007), that §§ 52-592 and 52-
212 ‘‘have different purposes and, thus, employ different
legal standards.’’ Subsequently, in Estela v. Bristol Hos-
pital, Inc., 179 Conn. App. 196, 207, 180 A.3d 595 (2018),
this court reiterated this difference of standards, stat-
ing: ‘‘To open a nonsuit pursuant to § 52-212 (a), a plain-
tiff must demonstrate that it was prevented from prose-
cuting its action by mistake, accident or other
reasonable cause . . . . In contrast, the matter of form
provision of § 52-592 (a) . . . requires a plaintiff to
demonstrate that the prior suit failed in circumstances
such as mistake, inadvertence or excusable neglect.’’
(Citation omitted; emphasis added; footnote omitted;
internal quotation marks omitted.) ‘‘In cases where [our
Supreme Court] either stated or intimated that the ‘any
matter of form’ portion of § 52-592 would not be applica-
ble to a subsequent action brought by a plaintiff, [our
Supreme Court has] concluded that the failure of the
case to be tried on its merits had not resulted from
accident or even simple negligence.’’ (Emphasis
added.) Lacasse v. Burns, 214 Conn. 464, 473, 572 A.2d
357 (1990). Simply stated, I am unpersuaded by the
majority’s position and believe that a factual determina-
tion regarding the plaintiff’s conduct should be made
by the trial court in order to determine whether the
accidental failure of suit statute is applicable.
Although there is no case law directly on point in the
context of a judgment rendered pursuant to § 52-549z,
there have been cases concerning actions that have
failed for other procedural reasons, wherein the court
has analyzed the plaintiff’s conduct and determined
whether it amounts to mistake, inadvertence, or excus-
able neglect so as to constitute failure as a matter of
form for purposes of § 52-592. I find the underlying
analysis conducted by this court in two particular cases
to be persuasive in the present matter.
In Stevenson v. Peerless Industries, Inc., 72 Conn.
App. 601, 603, 806 A.2d 567 (2002), the plaintiff failed
to respond to discovery requests, leading to a judgment
of nonsuit. The plaintiff then brought a second action
pursuant to § 52-592, which was dismissed after the
trial court found that the plaintiff’s failure to respond
to discovery requests was caused by inaction and not
mistake, inadvertence, or excusable neglect. Id., 605.
This court reversed the trial court’s decision and held
that the plaintiff was not precluded from bringing a
second action pursuant to the accidental failure of suit
statute, because the plaintiff’s failure to respond to a
discovery request, which occurred in a span of only six
months, did not result in considerable delay or inconve-
nience to the court or to opposing parties. Id., 610.
Additionally, recognizing that the plaintiff provided a
credible excuse, namely, miscommunication with out-
of-state counsel, this court concluded that the plaintiff’s
conduct was not dilatory or a delay tactic, and that
the situation involved an ‘‘excusable neglect’’ so as to
constitute failure as a matter of form for purposes of
the remedial statute. Id.
In Tellar v. Abbott Laboratories, Inc., 114 Conn. App.
244, 246, 969 A.2d 210 (2009), the plaintiff’s first action
was dismissed because the plaintiff similarly failed to
respond in any manner to the court’s discovery order.
Subsequently, the plaintiff filed a second action pursu-
ant to § 52-592, which was dismissed after the trial court
concluded that the plaintiff had not demonstrated
excusable neglect. Id., 248–49. On appeal, the plaintiff
contended that because the conduct precipitating the
dismissal of the first action was not egregious, he should
be entitled to the relief afforded by the statute. This
court agreed with the plaintiff; we noted that the plain-
tiff’s conduct ‘‘was neither repeated nor protracted . . .
[but] consisted of a singular failure to comply with a
discovery request over the course of four months’’; id.,
252; that ‘‘did not result in considerable delay or incon-
venience to the defendant or the court.’’ Id., 254. These
considerations, combined with the fact that the plaintiff
had a credible excuse, namely, illness of family mem-
bers of the plaintiff’s counsel, led this court to conclude
that the failure of the first action was as a matter of form
under circumstances of excusable neglect. Id., 255.
In my opinion, the various factors considered by this
court in both Stevenson and Tellar should be applied
by the trial court in the present matter in making its
factual determination regarding whether the plaintiff’s
conduct rises to the level of egregiousness that would
justify precluding applicability of the accidental failure
of suit statute. I note, for instance, that the time period
in this case is not particularly long, and the defendant
was not prejudiced by the actions of the plaintiff’s attor-
ney. Further, this case involves one instance rather than
a number of repeated or protracted actions. 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 day
in court.’’ (Internal quotation marks omitted.) Skinner
v. Doelger, supra, 99 Conn. App. 554–55. ‘‘[I]t is well
established in our long line of case law interpreting the
statute . . . that § 52-592 (a) is remedial and is to be
liberally interpreted.’’ (Internal quotation marks omit-
ted.) Plante v. Charlotte Hungerford Hospital, 300
Conn. 33, 49, 12 A.3d 885 (2011). It is with this policy
in mind that the trial court must make its determination
of whether the first action failed as a matter of form.
On the basis of the foregoing, I would reverse the
judgment dismissing the action and remand the case
to the trial court for further proceedings consistent with
this opinion. Therefore, I respectfully dissent.
1
General Statutes (Rev. to 2001) § 52-192a (b) provides in relevant part:
‘‘After trial the court shall examine the record to determine whether the
plaintiff made an ‘offer of judgment’ which the defendant failed to accept.
If the court ascertains from the record that the plaintiff has recovered an
amount equal to or greater than the sum certain stated in his ‘offer of
judgment,’ the court shall add to the amount so recovered twelve per cent
annual interest on said amount . . . .’’ (Emphasis added.)
All references herein to § 52-192a are to the 2001 revision of the Gen-
eral Statutes.
2
In Nunno, the plaintiff was involved in a motor vehicle collision. After
filing an action against the defendants, the plaintiff filed an offer of judgment
for $19,000 pursuant to § 52-192a (a). Nunno v. Wixner, supra, 257 Conn.
674. The defendants did not accept the offer of judgment. Id. Subsequently,
the case went to arbitration under the court’s mandatory arbitration program
pursuant to § 52-549u. Id., 674–75. The arbitrator issued a decision awarding
the plaintiff $21,945, which became a judgment of the court pursuant to
§ 52-549z. Id., 675. Thereafter, the plaintiff filed a motion seeking an award
of 12 percent interest on the judgment pursuant to § 52-192a because the
amount awarded through arbitration exceeded the amount of the plaintiff’s
offer of judgment. Id., 676. The trial court denied the plaintiff’s motion after
determining that ‘‘mandatory arbitration is not a trial and therefore the offer
of judgment provisions do not apply’’; (internal quotation marks omitted)
id., 676 n.9; and our Supreme Court affirmed the court’s judgment. Id., 677.
3
The court stated the following regarding arbitration proceedings: ‘‘Court-
mandated arbitration proceedings pursuant to § 52-549u do not include many
of the distinctive hallmarks of a trial. . . . [T]he United States Supreme
Court concluded that [a]rbitration differs from judicial proceedings in many
ways: arbitration carries no right to a jury trial as guaranteed by the Seventh
Amendment; arbitrators need not be instructed in the law; they are not
bound by rules of evidence; they need not give reasons for their awards;
witnesses need not be sworn; the record of proceedings need not be com-
plete; and judicial review, it has been held, is extremely limited. . . . [T]he
United States Supreme Court also distinguished arbitration from judicial
proceedings, concluding that arbitral [fact-finding] is generally not equiva-
lent to judicial [fact-finding]. . . . [T]he record of the arbitration proceed-
ings is not as complete; the usual rules of evidence do not apply; and
rights and procedures common to civil trials, such as discovery, compulsory
process, cross-examination, and testimony under oath, are often severely
limited or unavailable. . . . [Our Supreme Court] also has distinguished
arbitration from judicial proceedings, concluding that an arbitration proceed-
ing is not an action for purposes of the statute of limitations. . . . In doing
so, the court concluded that arbitration proceedings do not occur in court,
indeed that their very purpose is to avoid the formalities, the delay, the
expense and vexation of ordinary litigation. . . . [T]hese proceedings are
not governed by our rules of procedure.’’ (Citations omitted; internal quota-
tion marks omitted.) Nunno v. Wixner, supra, 257 Conn. 679–80.
4
The court in Nunno stated: ‘‘[N]o witnesses testified for either party and
no formal exhibits were offered. The parties merely submitted copies of a
police report, photographs, transcripts of depositions, medical reports and
medical bills. The parties also summarized their respective cases through
their counsel. After reviewing all of the information provided, the arbitrator
issued his nonbinding award. The arbitration proceedings in this case dif-
fered greatly from a trial. The procedures were informal and parties were
allowed to present unsworn evidence. None of the rules of evidence applied
in this proceeding. In addition, the proceeding was presided over by a
nonjudicial officer, whose decision was not binding on the parties.’’ Nunno
v. Wixner, supra, 257 Conn. 680–81.
5
The majority attempts to distinguish a trial as analyzed in Nunno from
‘‘tried on its merits,’’ as that phrase is used in the accidental failure of suit
statute. Specifically, the majority states that ‘‘[t]he statute at issue in the
present case is § 52-592, the accidental failure of suit statute,’’ which con-
cerns an action that has ‘‘failed one or more times to be tried on its merits
. . . for any matter of form . . . . The determinative issue in Nunno was
what constituted a trial. The word trial does not appear in § 52-592 and,
therefore, what constitutes a trial cannot be the determinative issue in the
present case. The relevant language in § 52-592 is tried on its merits.’’
(Emphasis in original.) The word trial, a noun, means a ‘‘formal examination
before a competent tribunal of the matter in issue in a civil or criminal
cause in order to determine such issue . . . .’’ Merriam-Webster’s Collegiate
Dictionary (11th Ed. 2003), p. 1334. The word ‘‘tried’’ is the past tense of
the verb ‘‘try,’’ which means ‘‘to examine or investigate judicially . . . to
conduct the trial of . . . to participate as counsel in the judicial examination
of . . . .’’ Id., 1344. Given that ‘‘trial’’ and ‘‘tried’’ essentially mean the same
thing, it is of no consequence that the accidental failure of suit statute refers
only to the verb tried, as opposed to the noun trial; it’s a distinction without a
difference. Accordingly, I disagree with the majority’s attempt to distinguish
Nunno in this regard and conclude that the analysis in Nunno concerning
what constitutes a trial is directly relevant to the determination in the present
case of whether the arbitration matter failed to be tried on its merits as a
matter of form.
Moreover, in finding that Nunno is not controlling, the majority opinion
states that ‘‘our Supreme Court’s decision in Nunno relied in significant
part on the purpose of the offer of compromise statute,’’ which is to promote
the pretrial settlement of cases, whereas the accidental failure of suit statute
ensures that litigants are able to have their disputes resolved on the merits
and is ‘‘not intended to promote the informal resolution of . . . [disputes]
. . . .’’ (Emphasis added.) I disagree. What the court in Nunno focused on
was the arbitration proceeding itself, and whether that procedure constituted
a trial, which was necessary for a determination of whether the offer of
compromise statute was applicable to a judgment rendered following court-
mandated arbitration. See Nunno v. Wixner, supra, 257 Conn. 680 (‘‘[a]n
examination of the arbitration proceeding in the present case supports our
conclusion that the arbitration proceeding was not conducted as a trial’’).
Although the court referred to the punitive nature of the offer of judgment
statute and found that it was ‘‘inconsistent with the legislature’s intention
in enacting court-mandated arbitration’’; id., 684; its primary focus was on the
nature of the arbitration procedure itself, which it found did not constitute
a trial. See id., 679–83. That procedure is essentially the same one at issue
in the present case, which also should not be found to constitute a trial.
Accordingly, I would find, on the basis of Nunno, that the matter previously
had failed to be tried on its merits.
6
The majority also relies on Legassey v. Shulansky, 28 Conn. App. 653,
611 A.2d 930 (1992), in support of its conclusion. Specifically, the majority
relies on the following statement by this court in Legassey: ‘‘Judgments
based on the following reasons are not rendered on the merits: want of
jurisdiction; pre-maturity; failure to prosecute, unavailable or inappropriate
relief or remedy; lack of standing.’’ (Internal quotation marks omitted.) Id.,
658. The majority points out that ‘‘judgments rendered pursuant to § 52-
549u are not one of the enumerated judgments considered not rendered on
the merits.’’ Nowhere in Legassey, however, did this court state that that
list was exhaustive. Nunno, which was decided after Legassey, clearly added
to that list.