No. XO1 CV00-0163760SCommonwealth of Massachusetts Superior Court AT WATERBURY.
August 9, 2001
HODGSON, J.
The motion to dismiss now before this court in the above-captioned case raises the issue whether the grace period provided by Conn. Gen. Stat. § 52-593a(a) applies to apportionment complaints. The underlying action concerns the claim of Stop Shop Supermarket Company for damages relating to a 1998 fire that occurred at a superstore it was developing.
Defendant C. Raimondo Sons Construction Co. Inc. (“Raimondo”) seeks dismissal of the claims that defendants David P. Smith and F.D.R., Inc. made against it as an apportionment defendant on the sole ground that the apportionment complaint was not served on it within one-hundred-twenty days of the return date specified in the plaintiffs original complaint, as required by Conn. Gen. Stat. § 52-102b.
The claim that David P. Smith and F.D.R., Inc. make against Raimondo is that any damages to the plaintiff were “proximately caused or exacerbated by the carelessness and negligence of the apportionment defendants in conjunction with their respective activities relative to the design and fabrication of the subject cooler or its component parts, and maintenance of the construction site in the area of the subject cooler.” In Allard v. Liberty Oil Equipment Co., 253 Conn. 787 (2000), the Supreme Court ruled that product liability claims, even if alleged as negligence claims, may not be the subject of apportionment complaints. The movants have not asserted this principle as a reason for dismissing the claim against them, and the court will therefore restrict its analysis to the ground for dis missal actually raised by the movant, and will not decide the motion on a ground not raised or briefed by the parties.
The court file reveals that the return date specified in the plaintiffs original complaint was November 14, 2000. The state marshal’s return states that pursuant to Conn. Gen. Stat. § 33-929 (b). the apportionment complaint against Raimondo, was deposited in the U.S. mail, certified, return receipt requested, on March 14, 2001, directed to the Secretary of Raimondo at an address in New Jersey and that the return receipt was signed on behalf of the addressee on March 19, 2001. Raimondo makes no claim that it had an agent for service of process in Connecticut.
At the hearing on the motion, the parties stipulated to the admissibility of an affidavit of state marshal John Lepito. In that affidavit, which is dated March 14, 2001, Mr. Lepito stated under oath that the apportionment complaint at issue was delivered to him for service on March 14, 2001, and that he completed service within fifteen days of that date.
Are the time limits imposed by § 52-102b jurisdictional?
Conn. Gen. Stat. § 52-102b creates a right that did not exist at common law. Until the legislation known as “Tort Reform” was enacted, Connecticut common law recognized joint and several liability, not contribution, among joint tortfeasors. The statute specifies a time limit within which the new statutory right to contribution by a negligent joint tortfeasor must be enforced. The Supreme Court has repeatedly held that time limits stated in a statute that creates a right that did not exist at common law are intrinsic to the cause of action, and that the court lacks jurisdiction to decide claims brought beyond the statutory deadlines. See, e.g., Ecker v. West Hartford, 205 Conn. 219, 231 (1987) Moore v. McNamara, 201 Conn. 16, 22 (1986); Milford Education Assn. v. Board of Education, 167 Conn. 513 (1975); DeMartino v. Siemon, 90 Conn. 527, 528 (1916). Accordingly, this court finds that compliance with the time limits set forth in § 52-102b is subject matter jurisdictional.[1]
Since the return day was November 14, 2000, the deadline for serving the apportionment complaint on Raimondo was March 14, 2001. This calculation is made on the basis that “the day of the act from which a future time is to be ascertained is to be excluded from the computation.”Stephen v. Hoerle, 39 Conn. App. 253, 256 (1995), quoting Larmberti v. Stamford, 131 Conn. 396. 397-98 (1944); Blackman v. Nearing, 43 Conn. 56
(1875); Weeks v. Hull, 19 Conn. 376 (1849).
Does § 52-593a apply to apportionment complaints?
It has long been the law in Connecticut that an action is deemed to be commenced on the date service is made on the defendant. Rana v. Ritacco, 236 Conn. 330, 337 (1996). The legislature enacted a statutory exception or grace period in Conn. Gen. State. § 52-593a. Stingone v. Elephant’s Trunk Flea Market, 53 Conn. App. 725, 729 (1999). That statute provides in relevant part that “a cause or right of action shall not be lost because of the passage of the 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 fifteen days of the delivery.”
The Appellate Court has ruled that if process was delivered to a state sheriff (now, a state marshal) within the time period set by a statute of limitation. even on the last day of the period during which the action may be brought. the plaintiffs action is not time-barred. Stingone v. Elephant’s Trunk Flea Market, supra, 53 Conn. App. 730. Because service was made on Raimondo within fifteen days of delivery of the apportionment complaint to the marshal, the complaint is timely if, indeed, an apportionment complaint is “a cause or right of action” that is subject to the application of § 52-593a.
Nothing in the wording of § 52-102b states that the right to maintain an apportionment complaint is exempt from the operation of § 52-593a. Nothing in the wording of § 52-593a states that this provision does not apply to apportionment complaints; rather, the only exclusion stated in that statute pertains to appeals from administrative agencies governed by § 4-183.
The movant has presented no reason to construe the word “serve” in § 52-102b in a way that is different from generally applicable statutes and rules concerning the manner and sufficiency of service applicable to other kinds of complaints. Raimondo observes, however, that the accidental failure of suit statute has been held to be inapplicable to apportionment complaints by several trial courts. The parties who have filed the apportionment complaint against Raimondo do not, however, rely on that statute, and there is therefore no occasion to rule on its applicability.
This court concludes that complaints asserting rights to apportionment, like other civil claims, are subject to the provisions of § 52-593a. and that the apportionment complaint against Raimondo was served in timely fashion applying the grace period authorized by that statute, which is applicable to apportionment complaints.
The apportionment complaint was delivered to a state marshal within the time period specified in § 52-102b. and the marshal achieved service within fifteen days of receipt of process. The court therefore has jurisdiction over the apportionment complaint.
Conclusion
The motion to dismiss the apportionment complaint of David Smith and F.D.R., Inc. against C. Raimondo Sons Construction Co., Inc. is denied on the sole ground asserted. The court expresses no opinion whether, as the parties have assumed, the subject matter of the apportionment complaint is actually within the scope of § 52-102b.