DocketNumber: No. CV-00-0500043 S
Citation Numbers: 2000 Conn. Super. Ct. 12103, 28 Conn. L. Rptr. 366
Judges: SHAPIRO, JUDGE.
Filed Date: 9/26/2000
Status: Non-Precedential
Modified Date: 4/18/2021
In its motion to dismiss, the defendant Board argues that the plaintiffs failed to provide notice of the injury to the clerk for the City of Bristol as required by law. No supporting affidavit was submitted by the movant.1
With their objection, Plaintiffs submitted the uncontradicted affidavit of plaintiff Karen Pio, mother of plaintiff Jason Pio. Ms. Pio alleges that "from the first week" after the incident in which her son was injured, she contacted school personnel, as well as the clerk of the city of Bristol, concerning her intention to "hold the school and the city" responsible for her son's injuries. (Affidavit of Karen Pio (Affidavit), April 20, 2000, ¶ 3.) Her averments are corroborated by a copy of a letter submitted by the plaintiffs, dated July 8, 2000, from the Allen J. Flood Companies, Inc. and addressed to Bristol Orthopaedics, L.L.C. The letter referenced Pio as the claimant, Bristol Public Schools as the policyholder, and May 6, 1998 as the date of loss. The letter also acknowledged receipt of the claim and sought information concerning whether the accident of May 6, 1998 caused the injury.
On July 24, 1998, Pio underwent reconstructive surgery. (See Affidavit, ¶ 4.) On July 27, 1998, Ms. Pio sent a letter to the Board, asking that the Board and/or the city of Bristol assume responsibility and "cover any expenses associated with Jason's injury that are not covered by any other insurance provider." (Letter to Board, July 27, 1998.) On the same day, Ms. Pio avers that she "called the City Clerk's office asking for information on procedure, policy and whom to contact to insist that my son be afforded the care he needed and filing a claim with the City of Bristol illustrating my son's needs." (Affidavit, ¶ 7.) Ms. Pio was instructed by the City Clerk's office to write a letter detailing the accident and was "told to address that letter to the City Claims Clerk, Claims Department and that Mr. Stephen Rybczyk would take care of it from that point on." (Affidavit, ¶ 8.) On the next day, July 28, 1998, Ms. Pio sent a letter addressed to "City Claims Clerk, Claims Dept." at Bristol City Hall, in which she described the accident and resulting surgery. Ms. Pio also requested therein that the "Board of Education and the City of Bristol assume the responsibility which is, by rights, theirs already" and requested an answer "ASAP." (Letter to City Claims Clerk, July 28, 1998.) On the next day, July 29, 1998, when her son was refused care due to lack of insurance, she met with Mr. William Smyth, Assistant to Superintendent for Business at the Board, and told him that, without assistance, she would sue the school, the Board and the city of Bristol. (See Affidavit, ¶ 10.) Mr. Smyth referred her to the Claims Department. (See Affidavit, ¶ 10.) Later CT Page 12105 that same day, Ms. Pio met with Mr. Rybczyk at the Claims Department. (See Affidavit, ¶ 11.) Mr. Rybczyk assured her of his help and stated that her letter, which had not yet arrived, would be forwarded to the insurance company. (See Affidavit, ¶ 11.) Also, Ms. Pio "asked him about policy and protocol if the insurance company did not pay and I had to sue the City, was there anything else I had to do, he answered that the letter I had written was `more than adequate' notice of intent and he would bring it to the Council and the Corporation Counsel." (Affidavit, ¶ 10.)
Plaintiffs also submitted a copy of a letter dated August 12, 1998, from Mr. Rybczyk to Ms. Pio on city of Bristol stationery. This letter referred to Mr. Rybczyk as the city of Bristol's "Claims Loss Coordinator." (See Letter from Rybczyk to Pio, August 12. 1998.) Therein, he advised Ms. Pio that on August 11, 1998, the City Council had voted to refer her claim "to the City's insurance carrier for handling." (Letter from Rybczyk to Pio, August 12, 1998.)
A motion to dismiss attacks the jurisdiction of the court, "essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." (Emphasis in original; internal quotation marks omitted.) Gurliacci v. Mayer,
Both §§
As our Supreme Court repeatedly has said, in statutory interpretation, "common sense must be used." Sweetman v. State Elections EnforcementCommission,
Here, likewise, there is no assertion that the Board or city of Bristol officials did not receive ample opportunity to investigate the claim. The record before the court, in fact, demonstrates the opposite. If the court were to dismiss the case based on the facts before it, it would be the plaintiffs who had been misled, to their prejudice, by the advice provided CT Page 12107 in response to Ms. Pio's persistent inquiries. According to her affidavit, the clerk of the municipality, or his or her designee, directed Ms. Pio to the Claims Department, whose representative assured her that she had done all she had to do to perfect her claim. (See Affidavit, ¶¶ 7-8.) His subsequent letter concerning the City Council's action could only have had the effect of reiterating that fact.
In an analogous context, the trial court in Taylor v. Town of EastHaven, Superior Court, judicial district of New Haven at New Haven, Docket No. 412947 (July 6, 1999, Devlin, J.), came to a similar conclusion. There, a motion to dismiss was premised on a claimed failure to comply with the notice requirements of General Statutes §
It is a fundamental tenet of Connecticut jurisprudence that "[t]he law does not require a useless and futile act." In re Antony B.,
As noted above, Ms. Pio's affidavit was not controverted by any municipal official. On the unique facts presented here, the motion is denied. To hold otherwise would be to endorse the proposition that municipal officials may mistakenly advise laypersons as to how to perfect claims and, even where the municipality has been afforded an adequate opportunity to investigate a timely claim, the claim should be dismissed for lack of technical compliance with the applicable statute. The legislature cannot have intended such a result. Here because notice was sent to the clerk's designee, it satisfied the statutory requirements.
It is so ordered. CT Page 12108
BY THE COURT
ROBERT B. SHAPIRO JUDGE OF THE SUPERIOR COURT