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900 Shelton Plaza Associates v. Rocky Mt. Fiber Plus, Inc.

Superior Court of Connecticut, Judicial District of Ansonia-Milford, Milford

August 14, 2015

900 Shelton Plaza Associates
v.
Rocky Mountain Fiber Plus, Inc

MEMORANDUM OF DECISION

Theodore R. Tyma, J.

The plaintiff brings the present case against the defendant, Rocky Mountain Fiber Plus, Inc. (" Rocky Mountain Fiber") claiming that Rocky Mountain Fiber was negligent in the removal and replacement of a utility pole causing a water main break and resulting damages to the plaintiff. More particularly, the plaintiff alleges in its single-count complaint that Rocky Mountain Fiber was negligent in that " it knew or should have known of the close proximity of the utility pole of the underground water line servicing the plaintiff's property yet it failed to use reasonable care necessary under the circumstances when extracting and replacing the utility pole, to avoid damage to the underground water line, such as the use of hand tools rather than power equipment when removing and replacing the pole."

In its complaint, the plaintiff alleges that this action is brought pursuant to General Statutes § 52-593, commonly referred to as the accidental failure of suit statute, [1] The plaintiff commenced a prior action solely against AT& T based upon the same facts as in the present case against Rocky Mountain Fiber; those being, that AT& T was the negligent actor that replaced the pole causing damages to the plaintiff.

Rocky Mountain Fiber moves for summary judgment claiming that the action is time barred by the applicable statute of limitations contained in General Statutes § 52-584, [2] and is not saved by the provisions of § 52-593 because the plaintiff did not bring an action against the wrong defendant in the prior action. In other words, Rocky Mountain Fiber claims that AT& T was the proper defendant for the legal theory of negligence alleged. More particularly, Rocky Mountain Fiber contends that the plaintiff commenced the prior action against the proper defendant, AT& T, but AT& T was entitled to a judgment as a matter of law because the court concluded that AT& T was not responsible to the plaintiff for the alleged negligence of its independent contractor, Rocky Mountain Fiber. Rocky Mountain Fiber asserts, moreover, that because, in the prior action, the plaintiff could have also brought suit against it, the accidental failure of suit statute is inapplicable. The plaintiff counters that the present action falls squarely within the statutory provisions as it failed to obtain judgment in the prior action against AT& T because it named the wrong defendant, AT& T, and the purported right defendant is Rocky Mountain Fiber. The court agrees with the plaintiff, and denies Rocky Mountain's motion for summary judgment.

The facts relevant to the determination of the present motion are undisputed. During the period of time between March 5, 2010 and June 19, 2010, AT& T replaced a utility pole located on or adjacent to the plaintiff's commercial property on Bridgeport Avenue in Shelton, Connecticut. AT& T entered into an agreement with Rocky Mountain Fiber on or about January 6, 2010 referenced as " Outside Plant/Labor Construction Services." In accordance with the agreement, Rocky Mountain Fiber was to provide to AT& T materials and services that included the replacement of utility poles owned by the AT& T, including the pole in question.

A water service line was damaged during the replacement of the utility pole, which caused an interruption in the water service to the plaintiff's property. Among other things, the plaintiff seeks damages for loss of rents from tenants.

The court (Tyma, J.) granted summary judgment for AT& T concluding that, under the applicable agreement, AT& T was not responsible for the alleged negligence of its independent contractor, Rocky Mountain Fiber. The plaintiff's appeal of the court's decision remains pending. Subsequently, the plaintiff commenced the present action.

" By way of background, § 52-593, also known as the wrong defendant statute, provides a one year savings provision [that] applies if the plaintiff has failed to obtain judgment in the original action on the basis of her failure to name the right person as defendant . . . In its simplest application, the wrong defendant statute contemplates the situation in which a plaintiff erroneously sues A under the mistaken belief that A negligently operated or owned a vehicle, when in fact B operated or owned the vehicle . . . This language contemplates that, so long as the second action is brought within the one year time limitation, the defendant in that action may not avail itself of the statute of limitations. The general remedial purpose of this statute is to relieve a plaintiff of the statute of limitations consequences where the plaintiff made a factual mistake in selecting her original defendant for the legal theory of the action, so long as the plaintiff brings the second action against the right person within the one year period. Because the statute is remedial in nature, it should be construed broadly to accomplish its remedial purpose . . . In addition, any ambiguities should be resolved in a manner that furthers, rather than thwarts, the [statute's] remedial purposes . . . Nevertheless, as the Appellate Court has aptly observed, an excessively broad reading of § 52-593 would undermine the statute of limitations because a plaintiff could unilaterally extend the limitation period simply by filing an action against a defendant who could not be liable based on a legal theory. To allow [such an] action to continue at this time would defeat the basic purpose of the public policy that is inherent in statutes of limitation[s], i.e., to promote finality in the litigation process." (Citations omitted; internal quotation marks omitted.) Finkle v. Carroll, 315 Conn. 821, 830-31, 110 A.3d 387 (2015).

Under Connecticut law, a right person, as that term is used in § 52-593, is one who, as a matter of fact, is a proper defendant for the legal theory alleged." (Internal quotation marks omitted; emphasis in original.) Cogan v. Chase Manhattan Auto Financial Corporation, 276 Conn. 1, 8, 882 A.2d 597 (2005); see Isidro v. State of Connecticut, 62 Conn.App. 545, 549-50, 771 A.2d 257 (2001) (" The plaintiff's interpretation is contrary to our Supreme Court's interpretation of the statute. Our Supreme Court has recognized that § 52-593 applies only in circumstances in which the plaintiff's original action failed by reason of naming, in fact, the wrong defendant; that is, in cases in which the naming of the wrong defendant was the product of a reasonable and honest mistake of fact as to the identity of the truly responsible individual").

The defendant relies on the Finkle and Cogan cases to the extent that the defendant cites to the following language in its memorandum in support of its summary judgment motion: " Moveover, the Supreme Court has previously stated that the failure to name all of the defendants from whom [the plaintiff] could have recovered in [the] original action does not constitute a failure to name the right person as defendant within the meaning of § 52-593. (Emphasis in original.) Cogan v. Chase Manhattan Auto Financial Corp., supra, 276 Conn. at 11." (Internal quotations omitted.) Finkle v. Carroll, supra, 315 Conn. 832. The defendant's reliance is misplaced.

The only claim made in the original action was that AT& T was the person who negligently performed the work on the pole. The original action failed because the plaintiff made a factual mistake as to the identity of the person that actually replaced the utility pole. As was disclosed during the litigation process, Rocky Mountain Fiber, not AT& T, performed the work pursuant to an agreement with AT& T. The plaintiff made a good faith factual error as to the person who performed the work, and not a legal mistake as advanced by the defendant. Therefore, the cases relied upon by Rocky Mountain Fiber in support of their motion are distinguishable in that those cases did not involve the present circumstances which invoke the statute in its simplest application; that being, in the original action the plaintiff sued A for negligence in the replacement of a utility pole under the mistaken belief that A performed the work. A did not perform the work. B performed the allegedly negligent work, in its capacity as an independent contractor of A. Consequently, the plaintiff could not obtain judgment against A in the original action because, as a matter of fact, A was the wrong defendant for the legal theory alleged. See Finkle v. Carroll, supra, 315 Conn. 830.

The present circumstances clearly do not involve, as Rocky Mountain Fiber claims, the plaintiff's failure to name all of the defendants from whom it could have recovered in the original action against AT& T. Such a situation involves an action where the plaintiff brings an original action against at least one defendant who is properly named under the pleaded theory of liability. Here, the plaintiff's failure to name Rocky Mountain Fiber as a defendant in the original action against AT& T legally caused the plaintiff to obtain judgment against AT& T. The savings provisions, therefore, applies as the plaintiff failed to obtain judgment in the original action against AT& T on the basis of the plaintiff's failure to ...


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