DocketNumber: No. 099312
Citation Numbers: 1992 Conn. Super. Ct. 2221, 7 Conn. Super. Ct. 416
Judges: MEADOW, J.
Filed Date: 3/11/1992
Status: Non-Precedential
Modified Date: 7/5/2016
Pursuant to the accidental failure of suit statute, General Statutes Section
On October 26, 1990 the plaintiff, this time without Transit, refiled his breach of contract suit, while in November Transit filed its own breach of contract suit in District Court. The complaint alleges that the defendant breached its contract in that they breached implied warranties and failed to perform their work in a skillful and workmanlike manner. On December 31, 1991 the defendant filed a motion for summary judgment. CT Page 2222
The issue presented is whether the present action, clearly filed after the statute of limitations has expired but within one year after the dismissal of the first contract action, is saved by Section
any action, commenced within the time limited by law, has failed one or more times to be tried on its merits . . . on the action has been otherwise avoided or defeated . . . 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. (emphasis added).
The narrow legal question which therefore needs to be answered is, on the peculiar procedural facts of this case, which suit constitutes the "original action"?
The defendant argues that the "original action" was the negligence action which was dismissed on August 3, 1987, meaning that the instant action was filed more than one year after that dismissal. The plaintiff argues that "original action" means the first contract action, as the negligence action was an entirely different cause of action. Because the first contract action was dismissed on December 8, 1989, the plaintiff claims that the present action is saved by Section
Both parties cite Pintavalle v. Volkanos,
The court disagreed with the plaintiff and held that "`original action' means the first action filed within the time allowed by the applicable statute of limitations." Id., 419. The court also noted that adopting the plaintiff's interpretation would "defeat the basic purpose of statutes of limitation, namely, promoting finality in the litigation process." Id., 417. CT Page 2223 The instant action was filed more than eight years after the cause of action arose, and three years after his first suit was dismissed. Not only does Pintavalle, not support the plaintiff's argument, but plaintiff's actions appear contrary to the spirit of Pintavalle.
Furthermore, contrary to plaintiff's assertions, the instant action cannot be viewed as a separate cause of action from the first negligence action. The court in Gallo v. G. Fox Co.,
Because there has been only one cause of action, the court holds that the "original action" for purposes of this case was the first negligence action filed. That suit was dismissed on August 3, 1987, and plaintiff therefore had one year to refile his action, which he did. This action was not filed until October of 1990 and cannot therefore be saved by the accidental failure of suit statute. This court agrees with the reasoning and results of the District Court (Dorsey, J.) in granting the defendant's motion to dismiss brought on the same ground.1 Accordingly, the defendant's motion for summary judgment is granted on the ground that plaintiff's suit cannot be saved by General Statutes Section
MEADOW, JUDGE