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Blakely v. Danbury Hospital

Supreme Court of Connecticut

December 20, 2016


          Argued December 9, 2015

          Michael G. Rigg, for the appellant (defendant).

          Kevin P. Thornton, for the appellee (plaintiff).

          Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and Robinson, Js.


          McDONALD, J.

         The sole issue in this certified appeal is whether the lapse of a jurisdictional time limitation for commencing suit in a statutory cause of action gives a defendant immunity from suit, such that an interlocutory appeal would be permitted to challenge a decision concluding that the accidental failure of suit statute (savings statute), General Statutes § 52-592, [1] saved an otherwise untimely action. We conclude that no immunity from suit arises under such circumstances. Consequently, a decision concluding that the savings statute permits a statutory cause of action subject to a jurisdictional time limitation to proceed cannot be the subject of an interlocutory appeal authorized under State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983).

         The record reveals the following undisputed facts and procedural history. Pursuant to General Statutes § 52-555, [2] a wrongful death action was timely filed in the name of the estate of Benny A. Gillotti against the defendant, Danbury Hospital. The defendant moved to dismiss that action on the ground that an estate is not a legal entity with the capacity to sue. The trial court, Doherty, J., granted the motion and rendered judgment dismissing the action. See Gillotti v. Danbury Hospital, Superior Court, judicial district of Danbury, Docket No. CV-13-6011628-S (July 15, 2013).

         Months later, the plaintiff, Anna Marie Gillotti Blakely, commenced the present wrongful death action in her capacity as the administratrix of Gillotti's estate. The defendant moved for summary judgment, claiming that the plaintiff's action was time barred because (a) it had been filed after the two year time limitation for commencing a wrongful death action under § 52-555 had lapsed, and (b) the savings statute does not apply to an action that has been dismissed due to an attorney's ignorance of the law. The trial court, Roraback, J., denied the motion for summary judgment. In a subsequent articulation, the court explained that it had concluded that the mistake of law at issue was a ‘‘matter of form'' that could ‘‘properly be viewed as mistake, inadvertence or excusable neglect of a nature to permit resort to the protections of [the savings statute].'' (Internal quotation marks omitted.)

         The defendant appealed from the denial of its motion for summary judgment, challenging the trial court's conclusion that the savings statute applied under these circumstances. Recognizing that its appeal prior to the trial court's adjudication on the merits of the plaintiff's wrongful death claim was interlocutory, the defendant invoked the second prong of the test set forth in Curcio as authority for its appeal. After a hearing, the Appellate Court issued an order dismissing the appeal for lack of a final judgment. This court thereafter granted the defendant's petition for certification to appeal seeking to challenge that determination. Blakely v. Danbury Hospital, 316 Conn. 905, 111 A.3d 471 (2015).

         The defendant claims that its appeal falls within the exception to the final judgment rule under the second prong of the Curcio test because the appeal seeks to vindicate a legal right, or at least a colorable claim to a legal right, to freedom from suit. Specifically, the defendant contends that the lapse of a jurisdictional statute of limitations like the one in § 52-555 gives rise to such a right. In support of this proposition, the defendant relies on a statement to this effect in St. Paul Travelers Cos. v. Kuehl, 299 Conn. 800, 815, 12 A.3d 852 (2011). In response, the plaintiff characterizes the statement in Kuehlas dicta, and asserts that the jurisdictional nature of the time limitation in § 52-555 is irrelevant in any event because the time limitation in the savings statute, which is not jurisdictional, controls. In support of this proposition, the plaintiff cites Isaac v. Mount Sinai Hospital, 210 Conn. 721, 731-32, 557 A.2d 116 (1989), which concluded that the wrongful death statute should be read as if the savings statute is incorporated, such that the time limitation of the latter modifies the former.[3] We conclude that the characterization of the effect of a jurisdictional statute of limitations in Kuehl is not accurate for purposes of Curcio.

         It is well settled that ‘‘[t]he subject matter jurisdiction of our appellate courts is limited by statute to appeals from final judgments . . . . [However], the courts may deem interlocutory orders or rulings to have the attributes of a final judgment if they fit within either of the two prongs of the test set forth in [Curcio].'' (Internal quotation marks omitted.) Radzik v. Connecticut Children's Medical Center, 317 Conn. 313, 318, 118 A.3d 526 (2015). The second prong of the Curcio test, on which the defendant relies in the present case, permits an appeal if the decision ‘‘so concludes the rights of the parties that further proceedings cannot affect them.'' State v. Curcio, supra, 191 Conn. 31. That prong ‘‘focuses on the nature of the right involved. It requires the parties seeking to appeal to establish that the trial court's order threatens the preservation of a right already secured to them and that that right will be irretrievably lost and the [parties] irreparably harmed unless they may immediately appeal. . . . One must make at least a colorable claim that some recognized statutory or constitutional right is at risk. . . . In other words, the [appellant] must do more than show that the trial court's decision threatens him with irreparable harm. The [appellant] must show that that decision threatens to abrogate a right that he or she then holds. . . . The right itself must exist independently of the order from which the appeal is taken.'' (Citations omitted; emphasis in original; internal quotation marks omitted.) Hartford Accident & Indemnity Co. v. Ace American Reinsurance Co., 279 Conn. 220, 226-27, 901 A.2d 1164 (2006).

         This court previously has determined that, ‘‘under the second prong of [Curcio], a colorable claim to a right to be free from an action is protected from the immediate and irrevocable loss that would be occasioned by having to defend an action through the availability of an immediate interlocutory appeal from the denial of a motion to dismiss.'' Dayner v. Archdiocese of Hartford, 301 Conn. 759, 771, 23 A.3d 1192 (2011). The rationale for immediate appellate review is that ‘‘the essence of the protection of immunity from suit is an entitlement not to stand trial or face the other burdens of litigation.'' (Internal quotation marks omitted.) Id. The second prong of Curcio has been deemed satisfied under this rationale for actions that are claimed to violate: sovereign immunity; Shay v. Rossi, 253 Conn. 134, 164-67, 749 A.2d 1147 (2000), overruled in part on other grounds by Miller v. Egan, 265 Conn. 301, 325, 828 A.2d 549 (2003); immunity for statements made in judicial and quasi-judicial proceedings; Chadha v. Charlotte Hungerford Hospital, 272 Conn. 776, 787, 865 A.2d 1163 (2005); religious institutions' first amendment immunity; Dayner v. Archdiocese of Hartford, supra, 771-72; statutory immunity; Manifold v. Ragag-lia, 94 Conn.App. 103, 112-13, 891 A.2d 106 (2006); the prohibition against double jeopardy; State v. Longo, 192 Conn. 85, 91, 469 A.2d 1220 (1984); and res judicata. Lighthouse Landings, Inc. v. Connecticut Light & Power Co., 300 Conn. 325, 328 n.3, 15 A.3d 601 (2011).[4]

         It is well established that no right to immunity from suit arises from the lapse of an ordinary statute of limitations. ‘‘The purpose of a statute of limitations is to prevent stale claims and unnecessary delays in the presentation of issues. . . . A plaintiff's timely filed action provides notice to the defendant and ensures that the defendant does not find itself in a situation where, because of the lapse of time, [the defendant] is unable to gather facts, evidence, and witnesses necessary to afford . . . a fair defense. . . . Statutes of limitations also allow persons, after the lapse of a reasonable time, to plan their affairs with a reasonable degree of certainty, free from the disruptive burden of protracted and unknown potential liability . . . .'' (Internal quotation marks omitted.) Doe v. Hartford RomanCatholic Diocesan Corp., 317 Conn.357, 422-23, 119 A.3d 462 (2015). Because such interests may be adequately vindicated by a trial judgment in the defendant's favor or on appeal, an adverse ruling on a statute of limitations defense has been deemed not to satisfy the second prong of Curcio. See State v. Coleman, 202 Conn. 86, 91, 519 A.2d 1201 (1987) (‘‘As an affirmative defense, the statute of limitations provides the defendant with a shield, not against prosecution itself, but against successful prosecution. . . . [T]he rights afforded the defendant, via the remedy of the statute of limitations, were not concluded by the denial of her motion. Those rights, if they exist in this case, are still intact and may be enforced on trial or on appeal from a final judgment.'' [Citation omitted.]); see also San-torso v. Bristol Hospital, 308 Conn. 338, 354 n.9, 63 A.3d 940 (2013) (‘‘the denial of a statute of limitations defense is not itself an appealable final judgment'').

         Our case law has long recognized, however, that time limitations in a statutorily created right of action with no common law antecedent, like a wrongful death action under § 52-555, are not ordinary statutes of limitations. See Korb v. Bridgeport Gas Light Co., 91 Conn. 395, 397-402, 99 A. 1048 (1917); DeMartino v. Siemon, 90 Conn. 527, 528-29, 97 A. 765 (1916). In Korb, the court explained with regard to the predecessor to § 52-555: ‘‘The [wrongful death] statute . . . creates a liability unknown to the common law, and contains a proviso that no action shall be brought upon it but within one year from the neglect complained of. This proviso is something more than an ordinary statute of limitations. It embodies an essential element of the cause of action created-a condition attached to the right to sue at all. The liability and the remedy are created by the same statutes, and the limitations of the remedy are, therefore, to be treated as limitations of the right. . . . It follows that the statutory provision or provisions prescribing the limitation must be strictly observed if liability is to attach to the claimed offender. Failure to show such observance results in a failure to show the existence of a good cause of action.'' (Citations omitted; internal quotation marks omitted.) Korb v. Bridgeport Gas ...

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