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SANDRA HARVEY, ADMINISTRATRIX (ESTATE OF
ISAIAH BOUCHER) v. DEPARTMENT OF
CORRECTION ET AL.
(AC 40956)
DiPentima, C. J., and Sheldon and Prescott, Js.
Syllabus
The plaintiff administratrix of the estate of the decedent, B, sought to recover
damages from the state defendants, the Department of Correction and
its inmate health care provider, for the wrongful death of B. On July
16, 2015, the Claims Commissioner had waived the state’s sovereign
immunity and authorized B to bring a medical malpractice action against
the state defendants, but B died on September 26, 2015, without having
done so. On September 29, 2016, the plaintiff commenced this wrongful
death action on behalf of B’s estate. Thereafter, the state defendants
filed a motion to dismiss the action, claiming that it was time barred
pursuant to the statute (§ 4-160 [d]) that requires a plaintiff who has
been granted authorization to sue the state by the Claims Commissioner
to bring an action within one year from the date that the authorization
was granted, and, therefore, that they were entitled to dismissal of the
action for lack of subject matter jurisdiction under the doctrine of
sovereign immunity. The trial court granted the state defendants’ motion
to dismiss and rendered judgment thereon, from which the plaintiff
appealed to this court. Held:
1. The plaintiff could not prevail on her claim that the trial court improperly
granted the state defendants’ motion to dismiss, which was based on
her claim that the applicable statute of limitations set forth in the wrong-
ful death statute (§ 52-555), which permits a wrongful death action to
be brought within two years from the date of the decedent’s death, had
not expired and is not limited by § 4-160 (d), and, therefore, her action
was not untimely: to bring a timely action against the state defendants,
the plaintiff had to comply with both the one year limitation period
provided in § 4-160 (d) and the statute of limitations for her wrongful
death action set forth in § 52-555, and because her action was not com-
menced within one year from the date that the Claims Commissioner
granted authorization to sue, that authorization had expired, and, there-
fore, the plaintiff’s action was barred by the state’s sovereign immunity
and the trial court properly dismissed it for lack of subject matter
jurisdiction; moreover, the plaintiff’s reliance on certain case law in
support of her claim was unavailing, as those cases were either misinter-
preted by the plaintiff or inapposite.
2. The plaintiff could not prevail on her claim that her action was timely
because the one year limitation period prescribed in § 4-160 (d) was
extended by statute (§ 52-594); even if § 52-594 were applicable and the
plaintiff’s contention that it prevents the expiration of the commission-
er’s waiver of sovereign immunity for one year following the death of
a successful claimant to allow a representative of the claimant’s estate
an opportunity to file an action were correct, the plaintiff’s action was
still untimely, as it was not commenced within one year of the date
B’s death.
Argued December 11, 2018—officially released April 2, 2019
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 dis-
miss and rendered judgment thereon, from which the
plaintiff appealed to this court. Affirmed.
Juri E. Taalman, with whom, on the 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).
Opinion
PRESCOTT, J. The plaintiff, Sandra Harvey, admin-
istratrix of the estate of Isaiah Boucher, appeals from
the judgment of the trial court dismissing the wrongful
death action filed against the defendants, the Depart-
ment 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 underly-
ing 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 plain-
tiff 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 com-
plaint and viewed in a light most favorable to the plain-
tiff, are relevant to our consideration of the present
appeal. Boucher became ill and eventually was diag-
nosed with oropharyngeal cancer while incarcerated
and in the care and custody of the Department of Cor-
rection. 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 Bou-
cher’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 noncompli-
ance 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 posi-
tion and granted the motion to dismiss in a memoran-
dum 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 limita-
tion 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 mat-
ter 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 autho-
rization 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
the plaintiff’s motion, and the plaintiff filed a reply to
the opposition. The court denied the plaintiff’s motion
for reconsideration and reargument without a hearing
and without comment on September 28, 2017. This
appeal followed.
We begin with our standard of review. ‘‘A motion to
dismiss . . . properly attacks the jurisdiction of the
court, essentially asserting that the plaintiff cannot as
a matter of law and fact state a cause of action that
should be heard by the court. . . . A motion to dismiss
tests, inter alia, whether, on the face of the record, the
court is without jurisdiction. . . . [O]ur review of the
trial court’s ultimate legal conclusion and resulting
[decision to] grant . . . the motion to dismiss will be
de novo. . . . [T]he doctrine of sovereign immunity
implicates subject matter jurisdiction and is therefore
a basis for granting a motion to dismiss.’’ (Citation omit-
ted; internal quotation marks omitted.) Columbia Air
Services, Inc. v. Dept. of Transportation, 293 Conn.
342, 346–47, 977 A.2d 636 (2009).
‘‘When a trial court decides a jurisdictional question
raised by a pretrial motion to dismiss on the basis of
the complaint alone, it must consider the allegations
of the complaint in their most favorable light. . . . In
this regard, a court must take the facts to be those
alleged in the complaint, including those facts necessar-
ily implied from the allegations, construing them in a
manner most favorable to the pleader.’’ (Internal quota-
tion marks omitted.) Id., 347.
I
The plaintiff first claims that the court improperly
granted the state’s motion to dismiss on the ground
that she failed to comply with the one year limitation
period set forth in § 4-160 (d) because the applicable
statute of limitations for a wrongful death action is the
two year period set forth in § 52-555 and that limitation
period cannot be limited by operation of § 4-160 (d).
The state responds that the plaintiff’s claim lacks merit
because it ignores the plain language of § 4-160 (d),
which imposes a time limit on the claims commission-
er’s waiver of sovereign immunity, and is premised on
a misreading of case law. We agree with the state.
‘‘The principle that the state cannot be sued without
its consent, or sovereign immunity, is well established
under our case law. . . . It has deep roots in this state
and our legal system in general, finding its origin in
ancient common law.’’ (Citation omitted; internal quota-
tion marks omitted.) C. R. Klewin Northeast, LLC v.
Fleming, 284 Conn. 250, 258, 932 A.2d 1053 (2007).
‘‘Exceptions to this doctrine are few and narrowly con-
strued under our jurisprudence.’’ Id. ‘‘[B]ecause the
state has permitted itself to be sued in certain circum-
stances, [our Supreme Court] has recognized the well
established principle that statutes in derogation of sov-
ereign immunity should be strictly construed. . . .
Where there is any doubt about their meaning or intent
they are given the effect which makes the least rather
than the most change in sovereign immunity. . . .
[T]he state’s sovereign right not to be sued without its
consent is not to be diminished by statute, unless a
clear intention to that effect on the part of the legislature
is disclosed.’’ (Citations omitted; internal quotation
marks omitted.) White v. Burns, 213 Conn. 307, 312–13,
567 A.2d 1195 (1990). ‘‘Among the statutes in derogation
of sovereignty and subject to the rule requiring strict
construction in favor of the state are those allowing
suits against the state or its representative, creating
a claim against the state or waiving immunity from
liability.’’ Berger, Lehman Associates, Inc. v. State, 178
Conn. 352, 356, 422 A.2d 268 (1979).
‘‘In the absence of a statutory waiver of sovereign
immunity, the plaintiff may not bring an action against
the state for monetary damages without authorization
from the claims commissioner to do so. [A] plaintiff
who seeks to bring an action for monetary damages
against the state must first obtain authorization from
the claims commissioner [in accordance with § 4-160
(a)]. . . . When sovereign immunity has not [other-
wise] been waived, the claims commissioner is author-
ized by [§ 4-160] to hear monetary claims against the
state . . . . This legislation expressly bars suits upon
claims cognizable by the claims commissioner except
as [the commissioner] may authorize, an indication of
the legislative determination to preserve sovereign
immunity as a defense to monetary claims against the
state not sanctioned by the [claims] commissioner or
other statutory provisions.’’ (Citations omitted; internal
quotation marks omitted.) Columbia Air Services, Inc.
v. Dept. of Transportation, supra, 293 Conn. 351–52.
Because § 4-160 authorizes the claims commissioner to
waive sovereign immunity and grant permission to sue
the state, the statute is in derogation of common-law
sovereign immunity and, therefore, must be strictly and
narrowly construed.
Section 4-160 contains limits on when and how an
action may be brought if authorization to sue is given
by the claims commissioner. Specifically, subsection
(d) provides in relevant part: ‘‘No such action shall
be brought but within one year from the date such
authorization to sue is granted. . . .’’ General Statutes
§ 4-160 (d). ‘‘[When] . . . a specific time limitation is
contained within a statute that creates a right of action
that did not exist at common law, then the remedy
exists only during the prescribed period and not there-
after. . . . In such cases, the time limitation is not to
be treated as an ordinary statute of limitation[s] . . .
but rather is a limitation on the liability itself, and not
of the remedy alone. . . . [U]nder such circumstances,
the time limitation is a substantive and jurisdictional
prerequisite, which may be raised [by the court] at any
time . . . and may not be waived.’’ (Internal quotation
marks omitted.) State v. Lombardo Bros. Mason Con-
tractors, Inc., 307 Conn. 412, 444, 54 A.3d 1005 (2012).
Accordingly, § 4-160 (d) is not an ordinary statute of
limitations but, rather, constitutes a strict time limit on
the waiver of the state’s sovereign immunity granted
by the claims commissioner. It follows that, once that
time period expires, any action brought against the state
would be subject to dismissal for lack of jurisdiction
under the doctrine of sovereign immunity in the same
manner as if the plaintiff never had been given authori-
zation to sue.
In the present case, the claims commissioner granted
Boucher a waiver of the state’s sovereign immunity on
July 16, 2015, authorizing him to file an action against
the state for medical malpractice. That waiver was lim-
ited by § 4-160 (d) to a period of one year, which
expired, at the latest, on July 17, 2016. Thus, the limited
waiver of sovereign immunity had expired by the time
the plaintiff commenced the present action on Septem-
ber 29, 2016. Without a valid waiver, the state was enti-
tled to dismissal of the action on the ground of
sovereign immunity.
The plaintiff nevertheless advances the novel theory
that the two year statute of limitations found in the
wrongful death statute somehow superseded or ren-
dered inoperative the one year limitation placed on the
claim commissioner’s waiver of sovereign immunity by
§ 4-160 (d). The plaintiff has not directed our attention
to any language in either statute that would support
the construction she suggests. The legislature, in
enacting § 4-160 (d), could have provided: Except as
otherwise provided in § 52-555, no such action shall
be brought but within one year from the date such
authorization to sue is granted. It has not done so, and
we cannot rewrite the statute. ‘‘It is well established
that a court must construe a statute as written. . . .
Courts may not by construction supply omissions . . .
or add exceptions merely because it appears that good
reasons exist for adding them.’’ (Internal quotation
marks omitted.) Cady v. Zoning Board of Appeals, 330
Conn. 502, 516, 196 A.3d 315 (2018). We agree with the
trial court that the plaintiff had the duty to comply with
both the statute of limitations set forth in § 52-555 and
the one year limitation on the waiver of sovereign immu-
nity provided in § 4-160 (d).
To the extent that the plaintiff suggests that her claim
finds support in the decision rendered in Lagassey v.
State, 50 Conn. Supp. 130, 913 A.2d 1153 (2005), which
was affirmed and adopted as a proper statement of the
law by our Supreme Court in Lagassey v. State, 281
Conn. 1, 5, 914 A.2d 509 (2007), we disagree with the
plaintiff’s interpretation of that decision.
In Lagassey, the plaintiff, an executrix of an estate,
brought a wrongful death action against the state claim-
ing that it had failed to diagnose and treat her decedent’s
leaking abdominal aortic aneurysm, thereby causing his
death on October 8, 1992. Id., 2–3. The plaintiff filed a
notice of claim with the claims commissioner on Sep-
tember 19, 1994, nineteen days before the expiration
of the two year wrongful death statute of limitations
in § 52-555. Id., 4. She received permission to sue the
state on August 23, 2000, but did not commence an
action until April 20, 2001. Id., 3. The state subsequently
moved for summary judgment, contending that the
action was time barred because the plaintiff failed to
commence it within the nineteen days remaining in
the applicable two year limitation period following the
August 23, 2000 decision by the claims commissioner.
Id., 3–4. The plaintiff argued that the tolling provision
of § 4-160 (d) not only tolled any operative statute of
limitations until after authorization to sue was granted
but also provided the claimant with an additional one
year to bring an action against the state. Id., 4–5. The
trial court agreed with the state’s construction of § 4-
160 (d) and granted its motion for summary judgment,
concluding that the plaintiff’s action was time barred
because the tolling provision of § 4-160 (d) only sus-
pended the running of the applicable statute of limita-
tions. Id., 4. The court rejected the plaintiff’s argument
that a new limitation period began to run after authori-
zation to sue was granted. Id.
The plaintiff wholly misinterprets the holding in
Lagassey. The plaintiff notes that the court in Lagassey
held that the executrix was required to comply with
the two year wrongful death statute of limitations, and
that the claim commissioner’s authorization to file an
action against the state did not affect the running of that
statute. Although that is true, nothing in the decision
suggests that, in a case in which the statute of limita-
tions for a particular cause of action had not yet run,
and more than one year remained before it expired, a
plaintiff could ignore the one year limit on the waiver
of sovereign immunity contained in § 4-160 (d). Rather,
a logical reading of Lagassey is that a plaintiff who
seeks to bring an action against the state following the
granting of permission to sue by the claims commis-
sioner should comply not only with the one year waiver
period but also with the statute of limitations for the
substantive cause of action because failure to comply
with either would render the action time barred.
Section 52-555 authorizes an executor or administra-
tor of an estate to bring an action to recover damages
on behalf of the estate against a party legally at fault
for injuries resulting in the death of the decedent ‘‘pro-
vided no action shall be brought to recover such dam-
ages and disbursements but within two years from the
date of death, and except that no such action may be
brought more than five years from the date of the act
or omission complained of.’’ As the plaintiff correctly
notes, § 52-555, the wrongful death statute, creates a
statutory cause of action that did not exist at common
law in Connecticut and, therefore, ‘‘must be strictly
construed and cannot be extended or enlarged by judi-
cial construction.’’ (Emphasis added.) Ecker v. West
Hartford, 205 Conn. 219, 226, 530 A.2d 1056 (1987).
Furthermore, ‘‘the time limitation contained therein is
a limitation upon the right itself, and as such, is jurisdic-
tional in nature and cannot be waived.’’ Id.
The plaintiff’s reliance on Ecker is inapposite. Ecker
simply involved a claim by the plaintiff in that case that
the defendant had waived the limitation period in § 52-
555 by failing to assert it in a timely manner. The ques-
tion on appeal was whether the limitation period in
§ 52-555 is jurisdictional in nature and thus could be
asserted at any time and could not be waived by the
parties. Ecker did not involve the question of whether
§ 52-555 expanded the court’s jurisdiction to hear cases
that were untimely under other statutes. A conclusion
in this case that the plaintiff’s action is untimely pursu-
ant to § 4-160 (d) does not in any way extend or enlarge
the limitation period in § 52-555.
As the state correctly notes in its appellate brief,
statutes of limitation generally are wielded by defen-
dants as shields; their purpose is not to provide addi-
tional substantive rights to plaintiffs. ‘‘The purposes
of statutes of limitation include finality, repose and
avoidance of stale claims and stale evidence. . . .
These statutes represent a legislative judgment about
the balance of equities in a situation involving the tardy
assertion of otherwise valid rights: [t]he theory is that
even if one has a just claim it is unjust not to put
the adversary on notice to defend within the period of
limitation and that the right to be free of stale claims
in time comes to prevail over the right to prosecute
them.’’ (Citation omitted; internal quotation marks omit-
ted.) Flannery v. Singer Asset Finance Co., LLC, 312
Conn. 286, 322–23, 94 A.3d 553 (2014). The plaintiff has
not cited a single case that supports her theory that
she was not required to comply with § 4-160 (d) because
the limitation period under § 52-555 continued to run.
Section 4-160 (d) serves a different purpose than an
ordinary statute of limitations, and a plaintiff who seeks
to bring an action against the state must, as the trial
court correctly concluded, comply with both § 4-160
(d) and the underlying, applicable statute of limitations
in order to timely bring an action against the state.
Consequently, because the plaintiff’s action was not
commenced within one year from the time the claims
commissioner granted authorization to sue, that autho-
rization expired. Accordingly, the plaintiff’s action was
barred by sovereign immunity, and the court properly
dismissed it for lack of subject matter jurisdiction.
II
We briefly turn to the plaintiff’s remaining claim,
namely, that even if the one year period for filing her
action as set forth in § 4-160 (d) was applicable, it,
nevertheless, was extended by operation of § 52-594,
which provides: ‘‘If the time limited for the commence-
ment of any personal action, which by law survives to
the representatives 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. In comput-
ing the times limited in this chapter, one year shall
be excluded from the computation in actions covered
by the provisions of this section.’’ (Emphasis added.)6
The state argues that § 52-594 is, by its express terms,
inapplicable because (1) it only applies to statutes of
limitation contained in chapter 926 of the General Stat-
utes, but § 4-160 (d) is found in chapter 53 and (2) it
is not a statute of limitations but a limitation on the
waiver of sovereign immunity. The state further argues
that even if § 52-594 applied, the plaintiff’s action was
still untimely. We agree with the state that because the
plaintiff’s action was not commenced within one year
of the date of Boucher’s death, it is unnecessary for
us to decide the applicability of § 52-592, because its
application would not have saved the plaintiff’s action
from dismissal.
Boucher died on September 26, 2015. If the plaintiff’s
theory that § 52-594 prevents the expiration of the
claims commissioner’s waiver of sovereign immunity
for one year following the death of a successful claimant
to allow a representative of the claimant’s estate an
opportunity to file an action were correct, the plaintiff
would have had until September 26, 2016, in which to
file a timely action. ‘‘[U]nder the law of our state, an
action is commenced not when the writ is returned
but when it is served upon the defendant.’’ (Internal
quotation marks omitted.) Rocco v. Garrison, 268 Conn.
541, 549, 848 A.2d 352 (2004). Here, the marshal’s return
indicates that service on the state was not made until
September 29, 2016. Accordingly, even if § 52-592 were
applicable, the plaintiff’s action was still untimely and,
thus, subject to dismissal on the basis of sovereign
immunity.
The judgment is affirmed.
In this opinion the other judges concurred.
1
General Statutes § 4-160 provides in relevant part: ‘‘(a) Whenever the
Claims Commissioner deems it just and equitable, the Claims Commissioner
may authorize suit against the state on any claim which, in the opinion of
the Claims Commissioner, presents an issue of law or fact under which the
state, were it a private person, could be liable. . . .
‘‘(d) No such action shall be brought but within one year from the date
such authorization to sue is granted. With respect to any claim presented
to the Office of the Claims Commissioner for which authorization to sue is
granted, any statute of limitation applicable to such action shall be tolled
until the date such authorization to sue is granted. . . .’’
2
General Statutes § 52-555 (a) provides: ‘‘In any action surviving to or
brought by an executor or administrator for injuries resulting in death,
whether instantaneous or otherwise, such executor or administrator may
recover from the party legally at fault for such injuries just damages together
with the cost of reasonably necessary medical, hospital and nursing services,
and including funeral expenses, provided no action shall be brought to
recover such damages and disbursements but within two years from the
date of death, and except that no such action may be brought more than
five years from the date of the act or omission complained of.’’
3
In essence, Boucher claimed that despite making repeated requests for
medical treatment over the course of nearly two years, the state failed to
properly evaluate his medical condition or to provide the necessary diagnos-
tic tests to discover his cancer in a timely manner.
4
See footnote 2 of this opinion.
5
In a footnote, the trial court mentioned, among other things, that the
plaintiff’s action arguably might be subject to dismissal due to the fact
that the claims commissioner had authorized Boucher to file a medical
malpractice action against the state whereas the plaintiff’s action sounded
in wrongful death. Because the court did not grant the motion to dismiss
on the basis of any of the issues raised in its footnote, however, we do not
reach those issues on appeal.
6
We note that the plaintiff did not raise her claim concerning the applicabil-
ity of § 52-594 in her opposition to the motion to dismiss or at oral argument
on the motion to dismiss. Rather, the issue was raised for the first time in the
plaintiff’s motion for reconsideration and reargument, which was rejected
by the court without comment. In her motion, the plaintiff argued that
Boucher died on September 26, 2015, and, ‘‘[t]herefore, his administrator
had until September 26, 2016, within which to bring suit pursuant to [§] 52-
594.’’ On appeal, the plaintiff attempts to change her claim, suggesting that
because at the time of his death Boucher had nine months remaining before
the expiration of his authorization from the claims commissioner, the plain-
tiff had one year from the date of death ‘‘plus the unexpired nine months,
or until July 16, 2017, to bring suit.’’ As we have consistently stated, however,
‘‘[t]he theory upon which a case is tried in the trial court cannot be changed
on review. . . . Moreover, an appellate court should not consider different
theories or new questions if proof might have been offered to refute or
overcome them had they been presented at trial.’’ (Internal quotation marks
omitted.) Nweeia v. Nweeia, 142 Conn. App. 613, 620, 64 A.3d 1251 (2013);
see also Curry v. Allan S. Goodman, Inc., 286 Conn. 390, 425, 944 A.2d 925
(2008) (legal theory raised for first time on appeal unreviewable). Accord-
ingly, we limit our review to the claim as it was framed and presented to
the trial court, namely, that the plaintiff had one year from the date of
Boucher’s death to file an action.