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Harvey v. Department of Correction

Court of Appeals of Connecticut

April 2, 2019

SANDRA HARVEY, ADMINISTRATRIX (ESTATE OFISAIAH BOUCHER)
v.
DEPARTMENT OF CORRECTION ET AL.

          Argued December 11, 2018

         Procedural History

         Action to recover damages for the wrongful death of the plaintiff's decedent as a result of the defendants' alleged medical malpractice, brought to the Superior Court in the judicial district of Hartford, where the court, Elgo, J., granted the defendants' motion to dismiss and rendered judgment thereon, from which the plaintiff appealed to this court. Affirmed.

          Juri E. Taalman, with whom, onthe brief, was David W. Bush, for the appellant (plaintiff).

          James M. Belforti, assistant attorney general, with whom, on the brief, was George Jepsen, former attorney general, for the appellees (defendants).

          DiPentima, C. J., and Sheldon and Prescott, Js.

          OPINION

          PRESCOTT, J.

         The plaintiff, Sandra Harvey, administratrix of the estate of Isaiah Boucher, appeals from the judgment of the trial court dismissing the wrongful death action filed against the defendants, the Department of Correction and the University of Connecticut Health Center Correctional Managed Health Care, to which we collectively refer in this opinion as the state. On July 16, 2015, the Claims Commissioner (claims commissioner) authorized Boucher to bring a medical malpractice action against the state. Boucher, however, died during September, 2015, without having filed an action, and the plaintiff did not commence the underlying action on behalf of Boucher's estate until more than one year later. The state filed a motion to dismiss the action because it was untimely pursuant to General Statutes § 4-160 (d), [1] which requires a party who is granted authorization by the claims commissioner to sue the state to do so within one year from the date such authorization is granted. The plaintiff claims on appeal that the court improperly granted the state's motion to dismiss because the statute of limitations set forth in General Statutes § 52-555 (a), which permits a wrongful death action to be brought within two years from the date of the decedent's death, [2] had not expired and is not limited by § 4-160 (d). Alternatively, the plaintiff claims that the one year limitation period prescribed in § 4-160 (d) was extended in this case by operation of General Statutes § 52-594, and, therefore, her action was timely. We disagree and, accordingly, affirm the judgment of the trial court.

         The following facts, as set forth by the court in its memorandum of decision or as taken from the complaint and viewed in a light most favorable to the plaintiff, are relevant to our consideration of the present appeal. Boucher became ill and eventually was diagnosed with oropharyngeal cancer while incarcerated and in the care and custody of the Department of Correction. In June, 2013, he underwent ‘‘a biopsy and surgery for a tracheotomy with a trachlaryngoscopy . . . .'' In June, 2015, he filed a notice of claim with the claims commissioner, seeking permission to file a medical malpractice action against the state.[3] On July 16, 2015, the claims commissioner rendered a decision authorizing Boucher to sue the state. In his finding and order, the claims commissioner indicated that ‘‘[the] grant of permission to sue is limited to that portion of the claim alleging malpractice against the state, a state hospital or a sanitarium or against a physician, surgeon, dentist, podiatrist, chiropractor, or all other licensed health care providers employed by the state.'' (Internal quotation marks omitted.)

         Boucher died on September 26, 2015, as a result of the progression of his cancer. On March 23, 2016, the plaintiff was appointed as the administratrix of Boucher's estate. In that capacity, on September 29, 2016, the plaintiff commenced the underlying action against the state.

         The state filed a motion to dismiss the action on November 1, 2016. The state asserted in its motion that, pursuant to § 4-160 (d), the plaintiff's claims were time barred and should be dismissed. Specifically, the state argued that § 4-160 (d) requires a plaintiff who has obtained authorization to sue the state from the claims commissioner to bring an action within one year from the date that the commissioner grants authorization. Here, the plaintiff filed the action seventy-three days beyond that one year limitation period, and, thus, the state claimed that the action was untimely and barred by sovereign immunity.

         The plaintiff filed an objection and a memorandum of law in opposition to the motion to dismiss. According to the plaintiff, because § 52-555 creates a statutory cause of action for wrongful death that did not exist at common law, that statute must be strictly construed, and the two year statute of limitations embodied in the statute cannot be extended, modified or enlarged in scope.[4] In other words, the plaintiff argues that despite the clear and unambiguous language of § 4-160 (d) requiring an action to be brought within one year of obtaining authorization from the claims commissioner, she had ‘‘within two years from the date of death'' of Boucher to commence a wrongful death action, and, therefore, her action was timely despite any noncompliance with § 4-160 (d). According to the plaintiff, the one year statutory period for filing a claim against the state is inoperative under the present circumstances and cannot be construed properly to reduce the time period for filing her wrongful death action.

         The trial court, Elgo, J., agreed with the state's position and granted the motion to dismiss in a memorandum of decision filed on June 21, 2017. The court noted that any waiver of the state's sovereign immunity must be narrowly construed, and, thus, any statutory limitation period placed on bringing an action against the state must also be strictly applied. The court concluded that ‘‘the plaintiff, in attempting to bring a statutory cause of action against the state, must comply with two time limitations: (1) the one year limitation to bring suit after authorization is given to sue; and (2) the original statute of limitations on the underlying cause of action. Failure to comply with either deprives the court of subject matter jurisdiction and is grounds for dismissal. . . . Given that the plaintiff's authorization to sue ended on July 16, 2016, and the plaintiff commenced this action after that date, this court lacks subject matter jurisdiction.''[5]

         The plaintiff filed a motion for reconsideration and reargument on July 10, 2017. In that motion, the plaintiff argued for the first time that the one year limitation period of § 4-160 (d) was extended by operation of § 52-594, which provides in relevant part that ‘‘[i]f the time limited for the commencement of any personal action, which by law survives to the representative of a deceased person, has not elapsed at the time of the person's death, one year from the date of death shall be allowed to his executor or administrator to institute an action therefor. . . .'' According to the plaintiff, at the time Boucher died on September 26, 2015, his authorization to bring an action against the state had not expired and, therefore, under § 52-594, the plaintiff should have had until September 26, 2016, to bring an action. The state filed a memorandum in opposition to ...


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