DANETTE ABITZ, ADMIN’X ET AL. v. EDWIN J. FIERER, M.D.

2008 Ct. Sup. 787, 44 CLR 820
No. X 09 CV 03 4025079Connecticut Superior Court Judicial District of Hartford, Complex Litigation Docket at Hartford
January 15, 2008

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION
JOSEPH M. SHORTALL, JUDGE.

Todd Abitz died on January 23, 2001, and this wrongful death action brought by his surviving spouse, the administratrix of his estate, alleges that his death was the result of professional negligence on the part of the defendant, Dr. Fierer. The defendant has filed a motion for summary judgment, claiming that the court lacks jurisdiction because the action was brought beyond the two-year statute of limitations for such actions. See Conn. General Statutes § 52-555.[1]

The facts surrounding Dr. Fierer’s claim are undisputed; the question is whether he is entitled to judgment as a matter of law. Practice Book § 17-44.

Because Mr. Abitz died on January 23, 2001, suit had to be brought by January 23, 2003. Pursuant to Conn. General Statutes § 52-190a(b), however, Mrs. Abitz obtained a ninety-day extension of this deadline to allow her attorney to make the reasonable inquiry mandated by §52-190a(a) to determine whether there were grounds for a good faith belief that there had been negligence in the care and treatment of Mr. Abitz. At this point, then, suit had to be brought by April 23, 2003. Before that date came and went, on April 17, 2003, counsel for Mrs. Abitz and a representative of Dr. Fierer’s insurer entered into an agreement (tolling agreement) that tolled the “running of any applicable statute of limitations and/or statute of repose . . . for ninety (90) days beginning on April 17, 2003.” See exhibit C to Revised Memorandum of Law in Support of Defendant’s Motion for Summary Judgment (defendant’s memorandum). Now suit had to be brought by July 15, 2003, ninety days from April 17. But, suit was not brought until July 16, 2003, when counsel for Dr. Fierer was served with the writ, summons and complaint by a constable, as permitted by Conn. General Statutes §52-50(a).[2]

By way of objection to the motion for summary judgment Mrs. Abitz has submitted affidavits from the constable, the attorney who signed the CT Page 788 original writ, summons and complaint and the administrator of the law firm which represents Mrs. Abitz to the effect that the documents were given to the constable for service on July 15, 2003.[3] See exhibits A, C E to Plaintiff’s Objection to the Defendant’s Revised Motion for Summary Judgment (plaintiff’s objection). She claims the protection of Conn. General Statutes § 52-593a:

Except in the case of an appeal from an administrative agency governed by section 4-183, a cause or right of action shall not be lost because of the passage of time limited by law within which the action may be brought, if the process to be served is personally delivered to a state marshal authorized to serve the process and the process is served, as provided by law, within thirty days of the delivery.

Because the process was in the constable’s hands on July 15, the deadline for service under the tolling agreement, and he served it the next day, Mrs. Abitz argues, § 52-593a saves the case from being declared untimely.

None of these procedural facts are in dispute, and at oral argument on her motion counsel for Dr. Fierer agreed that, if the statute applies under the facts of this case, an issue of material fact exists as to the timeliness of commencement of the action. It does not apply, Dr. Fierer argues, for two reasons: (1) the time limit here is not one provided by law but one set by contract between Mrs. Abitz and Dr. Fierer’s insurer, and § 52-593a does not apply to such time periods; (2) the statute by its explicit terms applies only when process is served by a state marshal not by a constable.

I
It is true that, when a time limitation for bringing suit is established in a contract of insurance, it has been held that § 52-593a
does not operate to extend that time limitation. See Sacks Realty Co. v. Newark Insurance Co., 34 Conn.Sup. 564, 566 (App. Sn., Super.Ct. 1976). This is so because the limitations period is not one provided by law but one provided by the parties.

Dr. Fierer has cited no cases and the court has found none in which this principle has been extended to agreements between the parties to toll the limitations period provided for in the applicable statute of limitations. Such an agreement is fundamentally different from one in CT Page 789 which the parties, without any reference to a time limitation provided by the law, agree between themselves what the time period should be for bringing suit. The time within which an action may be brought is in no sense limited by the law: it is limited by the parties.

Tolling agreements like the one in this case, on the other hand, are waivers by the putative defendant of his right to insist that any action be brought within the time limited by law. They are enforceable not on a contract theory but on an estoppel theory. “After agreeing to extend a statute of limitations, one would be estopped from repudiating its agreement.” Putnam Resources v. Frenkel Co., Inc., Superior Court, judicial district of Stamford-Norwalk, Docket No. CV 92 0123838 (Dec. 30, 1992) [8 Conn. L. Rptr. 133].

To be sure, the two necessary elements of estoppel must be present: “the party must do or say something that is intended or calculated to induce another to believe in the existence of certain facts and to act upon that belief; and the other party, influenced thereby, must actually change his position or do some act to his injury which he otherwise would not have done.” Morris v. Costa, 174 Conn. 592, 599 (1978). Here, Dr. Fierer’s representative provided the tolling agreement for signing by Mrs. Abitz’s counsel, extending the statutory time limit for bringing suit by another ninety days. Acting on that extension, which was entered into six days prior to the date upon which Mrs. Abitz would have had to institute suit, she forebore bringing this action at a time when she could otherwise have caused the suit to be commenced by service within the statutory time period. See Supplemental Affidavit of Lawrence H. Adler, exhibit D to the plaintiff’s objection. “The plaintiff gave up its right to file a suit at that point, which could well have been within the statute . . . Plaintiff relied on the letter from [the defendant’s representative] and did not bring suit against this defendant . . . thus satisfying the criterion for estoppel in the context of tolling a statute of limitations . . .” Putnam Resources v. Frenkel Co., Inc., supra.

Since the tolling agreement merely extended “the time limited by law within which the action may be brought,”[4] the court holds that § 52-593a applies to rescue the action from the consequence of the process having been served one day after the deadline set in the tolling agreement.

II
What of the fact that the process was served not by a marshal but by a constable, an officer not mentioned in § 52-593a? Answering this CT Page 790 question requires the court to interpret this statute according to well settled rules of statutory analysis:

When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature . . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply . . . In seeking to determine that meaning, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered . . . When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter . . . (Citations omitted; internal quotation marks omitted.) State v. Bletsch, 281 Conn. 5, 16 (2007).

The text of § 52-593a, considered in a vacuum, seems “plain” enough: if process is delivered to a “state marshal authorized to serve the process” (emphasis added) within the statute of limitations, and the marshal serves it within thirty days of delivery to him, the plaintiff’s right of action will not be defeated because the date it is served is beyond the “time limited by law.” When considered in relation to Conn. General Statutes § 52-50, however, the statute’s meaning is not so clear. Section 52-50 allows not only state marshals but also constables and “other proper officer[s] authorized by statute” to serve process. Does § 52-593a really mean to exclude service of process by these officers from its remedial saving provisions?

Even if the statute’s meaning is considered “plain and unambiguous,” is it not an “unworkable,” if not “absurd” result to allow the parties to a lawsuit to entrust their process to a constable but to deny them CT Page 791 the protection of § 52-593a should the constable be delayed in effecting service? Whether because the statute is ambiguous or because it yields an unworkable result, the court considers it essential to a proper analysis of the statute that extratextual evidence be considered.

In the year 2000 Public Act No. 00-99 (the act) abolished the historical system of sheriffs serving under the high sheriffs of each county in favor of employment by the Judicial Branch of state marshals who would take over all of the sheriffs’ functions, including service of process. The act was seventy-eight pages long and consisted of 154 sections. Many of those sections simply amended existing statutes to delete all references to “sheriffs” and substitute references to “state marshals.” The amendment of § 52-593a effected by section 138 of the act[5] is of the same type, but in that section the substitution was of the term “state marshal” for the word “officer.” This is evidence that the elimination of reference to an “officer” as one authorized to serve process was inadvertent, made in the welter of amendments meant to insert “state marshals” wherever “sheriff” or some other designation had previously appeared in a statute.

This major institutional change was prompted by repeated scandals involving sheriffs in the performance of certain of their functions not including the service of process. There is not a line of legislative history indicating an intent to make any changes in the way process was served or by whom. In fact, the only reference in the legislative history of P.A. 00-99 relevant to the issue before the court, i.e., what did the legislature intend for the process-serving function in all the changes it was making via the act, is one which indicates that it intended no change. In the House of Representatives Representative Andrew Roraback emphasized the importance of “keep[ing] intact those portions of the system that have not been a subject of great controversy, great concern, namely process serving.” H.R. Proc., April 18, 2000.

The court notes that the general assembly did amend § 52-50(a), by substituting “state marshal” for a “sheriff [or] his deputy” as a person authorized to serve process. It did not, while it was at it, remove constables as officers authorized to serve process. Public Acts 2000, No. 00-99, § 108. Similarly, Conn. General Statutes § 7-89 was amended by the act to eliminate references to the sheriffs’ power to serve process while maintaining the constables'”power in their towns to serve and execute all lawful process . . .” Id., § 22. Surely, if the legislature had concerns about how process was served by constables, it would have amended these statutes to remove their authority to do so, CT Page 792 and it did not.

“(W)e presume that laws are enacted in view of existing relevant statutes . . . and that [s]tatutes are to be interpreted with regard to other relevant statutes because the legislature is presumed to have created a consistent body of law.” (Internal quotation marks omitted.)State v. Cardwell, 246 Conn. 721, 738-39 (1998). It is at best inconsistent to allow constables to serve process and not to allow parties who entrust their process to constables for service to rely on the savings statute.

Dr. Fierer, however, proposes that the legislature meant to prohibit resort to § 52-593a by constables or parties who avail themselves of the constables’ services because the state marshal system it created in 2000 provides for greater training, supervision and regulation of marshals than constables. The theory is that the higher standards of professionalism demanded of state marshals would make them more reliable witnesses than constables in a proceeding to determine when process was placed in the hands of the process server for service.

This is not an implausible theory for such a statutory change, but it is wholly unsupported by anything in the legislative history of Public Act 00-99. In fact, such legislative history as exists indicates that the legislature had no intent to make any change in the service of process other than to substitute state marshals for sheriffs.[6]

Finally, § 52-593a is a remedial statute, to be construed liberally to avoid the hardships that may result from an unbending enforcement of statutory time limits. Interpreting it literally, to apply only where a marshal has made service, when there is no reason to believe that was the legislature’s intent, would frustrate rather than advance justice. No less a jurist than Mr. Justice Cardozo, when he was just Judge Cardozo on the New York Court of Appeals, had this to say about such statutes: “The [saving] statute is designed to insure to the diligent suitor the right to a hearing in court till he reaches a judgment on the merits. 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.” Gaines v. New York, 215 N.Y. 533, 539, 109 N.E. 594 (1915).[7]

The court concludes that, in amending § 52-593a, the general assembly did not intend to exclude process served by constables from its saving effect. Proper interpretation of § 52-593a, as amended by Public Act 00-99, leads to the conclusion that the statute is available to CT Page 793 save an action in which the plaintiff places process in the hands of a constable for service within the time limited by statute and it is served by the constable within the next thirty days.

III
Given the undisputed procedural facts, Dr. Fierer is not entitled to judgment as a matter of law on the question whether the action is barred by the two-year statute of limitations. The saving statute, § 52-593a, applies where the parties enter into a tolling agreement and when a constable is chosen to serve the process. Accordingly, the motion for summary judgment is DENIED.

Within one week of receipt of this decision, counsel for each of the parties shall contact John B. O’Connell, court officer for this complex litigation docket, and advise him of counsel’s views on the time that will be required for the court to hear the plaintiff’s motion to disqualify counsel for the defendant. Counsel for each party should be prepared to advise Mr. O’Connell of the number and identity of the witnesses counsel proposes to call at such a hearing.

[1] Where the limitations period is established in the statute which creates the right of action, as in § 52-555, bringing suit within the prescribed period is a jurisdictional prerequisite to maintenance of the action. Ecker v. Town of West Hartford, 205 Conn. 219, 232
(1987).
[2] “All process shall be directed to a state marshal, a constable or other proper officer authorized by statute . . . A direction on the process `to any proper officer’ shall be sufficient to direct the process to a state marshal, constable or other proper officer.”
[3] Testimony to the same effect at the constable’s deposition was also submitted. See exhibit B to plaintiff’s objection.
[4] Indeed, the tolling agreement, itself, refers to “the running of any applicable statute of limitations and/or statute of repose” being tolled by the agreement. See exhibit C to defendant’s memorandum.
[5] Section 52-593a was also amended by § 116 of the act, but, when a statute is amended more than once in the same public act, and the text of the amendments is inconsistent, it is the later amendment which is effective. Cf. Conn. General Statutes § 2-30b(a).
[6] It is also inconsistent with Conn. General Statutes § 52-592(a), CT Page 794 the accidental failure of suit statute, which allows constables as well as marshals to testify about the reasons for failures to serve or return the writ to court.
[7] Connecticut, too, has long recognized a strong policy favoring the adjudication of a case on its merits. See, e.g., Peabody N.E., Inc. v. Dept. of Transportation, 250 Conn. 105, 127 (1999).

CT Page 795