JEROME DORRY, et al. v. MITCHELL S. GARDEN, M.D., et al., SC 19191

Judicial District of Waterbury


     Wrongful Death; Accidental Failure of Suit Statute (§ 52-592); Whether Action “Commenced” Under § 52-592, Despite Marshal’s Defective Service, Because Defendants had Actual Notice of Action.  The plaintiff administratrix filed a wrongful death action (Dorry I) against, among others, several health care professionals (the defendants), alleging that the decedent’s death was caused by their negligence.  However, the marshal’s service of process on the defendants did not comport with statutory requirements and, as a result, Dorry I was dismissed as to them for lack of personal jurisdiction.  The plaintiff then brought this second wrongful death action (Dorry II) against the defendants pursuant to the accidental failure of suit statute, General Statutes § 52-592.  That statute provides that if an action, “commenced within the time limited by law,” fails to be tried on its merits for “insufficient service,” a new action for the same cause may be brought within one year of the determination of the original action.  The defendants claimed that the new action was barred by the statute of limitations.  The trial court agreed that Dorry II was time-barred unless it was saved by § 52-592.  The court dismissed Dorry II, ruling that, because Dorry I was never “commenced” against the defendants within the meaning of § 52-592 due to lack of service of process, there was no original action to be saved by the operation of that statute.  It explained that, although “commencement” of an action for purposes of § 52-592 does not require complete and sufficient service, the service attempted on the defendants for Dorry I was so deficient as to constitute no service at all and, thus, that action never “commenced” for purposes of § 52-592.  The court rejected the plaintiff’s argument that the defendants’ receipt of actual notice of Dorry I was sufficient to commence that action under § 52-592.  The court explained that, if the plaintiff’s argument were accepted, the legislative purpose behind both the statutes governing service of process and the various statutes of limitations would be undermined.  On appeal, the plaintiff claims that Dorry I was commenced for purposes of § 52-592 when the defendants received actual notice of it as a result of the marshal’s technically improper service.