2005 Connecticut Code - Sec. 52-592. Accidental failure of suit; allowance of new action.

      Sec. 52-592. Accidental failure of suit; allowance of new action. (a) If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits because of insufficient service or return of the writ due to unavoidable accident or the default or neglect of the officer to whom it was committed, or because the action has been dismissed for want of jurisdiction, or the action has been otherwise avoided or defeated by the death of a party or for any matter of form; or if, in any such action after a verdict for the plaintiff, the judgment has been set aside, or if a judgment of nonsuit has been rendered or a judgment for the plaintiff reversed, the plaintiff, or, if the plaintiff is dead and the action by law survives, his executor or administrator, may commence a new action, except as provided in subsection (b) of this section, for the same cause at any time within one year after the determination of the original action or after the reversal of the judgment.

      (b) When any action has been brought against an executor or administrator or continued against an executor or administrator after the death of the defendant and has failed for any of the causes listed in subsection (a) of this section, the plaintiff, or his executor or administrator in case a cause of action survives, may commence a new action within six months after the determination of the original action.

      (c) If an appeal is had from any such judgment to the Supreme Court or Appellate Court, the time the case is pending upon appeal shall be excluded in computing the time as above limited.

      (d) The provisions of this section shall apply to any defendant who files a cross complaint in any action, and to any action between the same parties or the legal representatives of either of them for the same cause of action or subject of action brought to any court in this state, either before dismissal of the original action and its affirmance or within one year after the dismissal and affirmance, and to any action brought to the United States circuit or district court for the district of Connecticut which has been dismissed without trial upon its merits or because of lack of jurisdiction in such court. If such action is within the jurisdiction of any state court, the time for bringing the action to the state court shall commence from the date of dismissal in the United States court, or, if an appeal or writ of error has been taken from the dismissal, from the final determination of the appeal or writ of error.

      (e) The provisions of this section shall apply to any claim against the state for which a notice of claim has been properly and timely filed with the clerk of the Office of the Claims Commissioner in accordance with sections 4-147 and 4-148 and which thereafter has been dismissed by the Claims Commissioner pursuant to section 4-142.

      (1949 Rev., S. 8332; P.A. 79-267; P.A. 82-160, S. 251; June Sp. Sess. P.A. 83-29, S. 50, 82; P.A. 98-20, S. 1, 2.)

      History: P.A. 79-267 changed wording, referring to dismissal of action rather than erasure from docket and to setting aside of judgment rather than arrest of judgment and deleting reference to abatement of writs, to conform to changes in superior court rules; P.A. 82-160 reworded provisions and divided section into Subsecs; June Sp. Sess. P.A. 83-29 included reference to appellate court in Subsec. (c); P.A. 98-20 added Subsec. (e) making section applicable to certain claims against the state that have been dismissed by the Claims Commissioner pursuant to Sec. 4-142, effective April 24, 1998.

      Original action held to have been defeated "for matter of form". 56 C. 591; 108 C. 485. Does not apply to provision in insurance policy limiting right of action. 74 C. 514. Action for death by wrongful act is in this statute. 91 C. 395; 102 C. 69. Is valid; authorizes continuance of suit begun in state court before dismissal of suit in federal court. 93 C. 412. Where action for death resulting from defendant's negligence is nonsuited, action can be recommenced within one year of date of nonsuit, although more than one year has elapsed from date of accident. 102 C. 69. Allegations of new complaint may set up different acts of negligence as long as cause of action remains the same. 108 C. 485. New action may substitute action under wrongful death statute of New York for original complaint erroneously counting on Connecticut wrongful death statute. Id., 444. Failure of officer to return writ to court is a default or neglect within the statute. 116 C. 29. An appeal from a zoning board is not an "action" within the statute. 126 C. 603. Modifies section 52-555 if the circumstances bring the case within its terms. 134 C. 386. Defective appeal from nonsuit falls within this section. 145 C. 99. Requirement that new action must be "for the same cause" explained. 148 C. 327. Appeal from architectural examining board not an "action" within meaning of this section. 153 C. 124, 125. Cited. 163 C. 388. Cited. 169 C. 646, 653. Cited. 189 C. 401, 412. Cited. 191 C. 150, 160. Cited. 192 C. 301, 306. Cited. 193 C. 28, 34. Cited. 198 C. 229, 233, 239. Cited. 206 C. 491- 495. Cited. 208 C. 230, 235. Cited. 210 C. 175, 179. Cited. Id., 721-726, 728, 729, 731-733. Cited. 211 C. 431, 435. Cited. 214 C. 464-467, 470-476. Cited. 216 C. 11, 14. Cited. Id., 412, 413, 416, 417. Cited. 225 C. 13, 18. Cited. 226 C. 831, 836. Cited. 234 C. 169, 180. Cited. 239 C. 265. Cited. Id., 574. Term "commenced", as used in sec. to describe an initial action that "has failed ... to be tried on its merits because of insufficient service", cannot be construed to mean good, complete and sufficient service of process. 268 C. 541.

      Cited. 7 CA 245, 246, 248. Cited. 11 CA 156, 158. Cited. 18 CA 515-520. Cited. 22 CA 625-627. Cited. 23 CA 404, 406, 407, 409. "... should not be construed so liberally as to render statutes of limitation virtually meaningless." 24 CA 239, 241-243. Cited. 28 CA 653, 659. Cited. 29 CA 132, 137, 138, 139. Cited. 32 CA 187-190. Cited. 34 CA 732, 734, 738. Cited. 41 CA 297, 298. Since section uses "action" and "cause of action", and not "claim", to refer to what is allowed to be brought under its provisions, trial court incorrectly concluded that savings provisions of section operate only to save the exact state law claims that were dismissed without prejudice in federal court, but do not permit the bringing of additional state law claims arising from same set of facts. 49 CA 715. Failure to return complaint for two and one-half years not diligent as required for application of statute. 50 CA 632. Second action improperly dismissed without affording plaintiff opportunity to present evidence on the issue of when he received notice of prior dismissal. Plaintiff who fails to receive timely notice of dismissal of original action is not barred from pursuing the action pursuant to this section. 68 CA 238. Plaintiff could not avail himself of the statute where alleged breach of contract occurred in 1993, where the action had been dismissed for dormancy in 1997 and dismissed again in 1999 for failure to close the pleadings, and where plaintiff failed to file a motion to open that dismissal or to proffer any explanation for his conduct. 69 CA 614. Plaintiff must have commenced an original action before statute can be applied to save a subsequent action. 78 CA 235. Plaintiff not required to plead or prove that statute was applicable to his action because defendants had not raised a statute of limitations defense. Id., 783. Previous claims that were not tried on their merits not saved by statute because they were not commenced within time periods set forth in applicable statutes of limitations; previous action cannot qualify as "original action" for purposes of statute because action did not fail to be heard as matter of form, but as part of settlement by parties. 84 CA 1.

      Cited. 15 CS 310; id., 505; 17 CS 409; 18 CS 482; 20 CS 377. Allegations necessary to bring the matter within the purview of this section should appear either by anticipation in the complaint or in the reply to a defense of the statute. 17 CS 3. Analogous to section 52-125. Id., 409. Where plea in abatement is sustained, plaintiff may bring new action under this section notwithstanding the statute of limitations. 18 CS 443. Obvious intention to make statute exceedingly broad and sweeping in scope. "Any matter of form" refers to mode of procedure. Statute remedial in character. 22 CS 207. Where plaintiff had brought a timely appeal under section 12-118 which was nonsuited, he is not entitled to rely on this section to bring a new appeal on the same cause of action after the two-month limitation had run, since the proceeding involving an appeal under section 12-107c(d) is not the type of action which comes within the saving protection of this section. 26 CS 168. Cited. 29 CS 246. Cited. 33 CS 174, 176. Fact that an abortive action was instituted in Connecticut to appoint an administrator does not invoke statute so as to shorten period of the general statute of limitation. 36 CS 121, 124-126. Cited. Id., 269-271. Cited. 40 CS 266, 268.

      Where default judgment was rendered for defendant in small claims session on failure of plaintiff to prosecute, default judgment was a "judgment of nonsuit" and plaintiff could commence new action under this section. 3 Conn. Cir. Ct. 3, 4. Whether plaintiff is entitled to pursue his action under this statute presented under pleadings an issue of law properly determined by court upon defendant's motion for summary judgment. 5 Conn. Cir. Ct. 487. Cited. 6 Conn. Cir. Ct. 643, 694.

      Subsec. (a):

      Cited. 192 C. 138, 144. Cited. 210 C. 721, 722. Cited. 214 C. 464, 465, 470, 472. Specifically authorizes commencement of new action where prior action was dismissed for want of jurisdiction; appellate court judgment in Southport Manor Convalescent Center, Inc. v. Foley, 20 CA 223, 226, reversed. 216 C. 11, 14, 17. "Original action" means first action filed within time allowed by applicable statutes of limitations. Id., 412-419. Cited. 236 C. 701, 703. Disciplinary dismissals are not excluded categorically from relief afforded by statute, and plaintiff claiming benefit of statute must be afforded opportunity to show that plaintiff's noncompliance with court order was due to mistake, inadvertence or excusable neglect. 243 C. 569. Applies to actions otherwise barred by applicable statute of limitations, does not operate to save plaintiff's action from contractual limitation period for bringing suit. 246 C. 378. Where a federal action and second state action were for same cause, federal action was the "original action," i.e. first action filed within time allowed by the applicable statute of limitations; Pintavalle v. Valkanos, 216 Conn. 412, affirmed; policy of the statute discussed. 250 C. 105. Appellate court properly ruled that plaintiff's appeal of an initial action was moot because defendant acknowledged that this subsection precluded any statute of limitations defense in the second action that wasn't applicable in the first action and therefore the first action, which only differed in the manner and date of service and the return date, was moot. 265 C. 650.

      Plaintiff limited to bringing new action within one year from end of original action, not the last action. 11 CA 156- 160. Cited. 22 CA 625, 626. Cited. 23 CA 404, 408. Cited. 24 CA 239, 241, 242. Not device for avoiding rules of res judicata. 28 CA 653, 656, 658. Cited. 34 CA 732, 734, 736-739. Dismissal due to party's pattern of delay can result in barring relief pursuant to this subsec. 62 CA 775. Plaintiff's original action was an "action" within meaning of this subsec. despite the fact that defendant named in that action had died prior to commencement of the action. 71 CA 697. Applicability of statute depends on particular nature of conduct involved, i.e, mere mistake, inadvertence or excusable neglect vs. egregious conduct. 72 CA 601.

      Subsec. (d):

      Cited. 32 CA 187, 189, 190. Trial court has subject matter jurisdiction over federal due process claims not tried on the merits in the federal courts. 54 CA 178.