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SANDRA HARVEY, ADMINISTRATRIX (ESTATE
OF ISAIAH BOUCHER) v. DEPARTMENT OF
CORRECTION ET AL.
(SC 20325)
Robinson, C. J., and Palmer, McDonald, D’Auria,
Mullins, Kahn and Ecker, Js.*
Syllabus
The plaintiff, the administratrix of the estate of the decedent, B, sought to
recover damages from the defendants, the Department of Correction
and the provider of health care for those in the department’s custody,
for B’s allegedly wrongful death. In July, 2015, the Claims Commissioner
authorized B to bring an action against the defendants for medical
malpractice, but B died without having done so. In September, 2016,
the plaintiff brought the present action against the defendants. The
defendants filed a motion to dismiss, claiming that the action was time
barred by the statute (§ 4-160 (d)) requiring 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. The plaintiff filed an objection, arguing that the one year
time limitation contained in § 4-160 (d) was inoperative because the
two year time limitation in the wrongful death statute (§ 52-555 (a))
controlled her wrongful death claim on behalf of B’s estate. The trial
court granted the motion to dismiss for lack of subject matter jurisdiction
and rendered judgment for the defendants. The plaintiff appealed from
the trial court’s judgment to the Appellate Court, which affirmed. The
Appellate Court concluded that the plaintiff was required to comply
with both the one year time limitation contained in § 4-160 (d) and the
two year time limitation contained in § 52-555 (a). More specifically, the
Appellate Court held that, because § 4-160 created a right of action
against the state that did not exist at common law, that statute’s one
year time limitation constituted a strict limitation on the waiver of
sovereign immunity. The Appellate Court also rejected the plaintiff’s
claim that the two year statute of limitations in § 52-555 (a) superseded or
rendered inoperative the one year limitation on the waiver of sovereign
immunity, reasoning that nothing in the text of § 4-160 (d) excepts
wrongful death actions from the strict, one year time limitation on the
waiver of sovereign immunity. The Appellate Court further held that,
because the Claims Commissioner’s authorization to sue had expired
when the plaintiff brought the present action, sovereign immunity barred
her action, and the trial court properly granted the defendants’ motion
to dismiss. On the granting of certification, the plaintiff appealed to this
court. Held that the Appellate Court’s reasoning and analysis were sound,
and, accordingly, that court properly upheld the trial court’s granting of
the defendants’ motion to dismiss for lack of subject matter jurisdiction;
moreover, this court’s decision in Soto v. Bushmaster Firearms Interna-
tional, LLC (331 Conn. 53), which recognized that the two year statute
of limitations for wrongful death actions contained in § 52-555 (a) does
not supersede a time limitation in a statute that creates a right of action
that did not exist at common law, provided additional support for the
Appellate Court’s holding because § 4-160 created the right to sue the
state for medical negligence, subject to authorization by the Claims
Commissioner, and the plaintiff was thus required to comply with both
the two year statute of limitations of § 52-555 (a) and the one year
limitation period set forth in § 4-160 (d).
(One justice concurring separately)
Argued May 4—officially released October 9, 2020**
Procedural History
Action to recover damages for the wrongful death of
the plaintiff’s decedent as a result of the defendants’
alleged medical malpractice, and for other relief,
brought to the Superior Court in the judicial district of
Hartford, where the court, Elgo, J., granted the defen-
dants’ motion to dismiss and rendered judgment
thereon, from which the plaintiff appealed to the Appel-
late Court, DiPentima, C. J., and Sheldon and Prescott,
Js., which affirmed the trial court’s judgment, and the
plaintiff, on the granting of certification, appealed to
this court. Affirmed.
Mario Cerame, with whom, on the brief, were Timo-
thy Brignole and David Bush, for the appellant
(plaintiff).
James M. Belforti, assistant attorney general, with
whom, on the brief, were William Tong, attorney gen-
eral, and Clare E. Kindall, solicitor general, for the
appellees (defendants).
Opinion
McDONALD, J. The nub of the question before us is
whether the limitations period for a claim against the
state brought by the representative of a decedent is
controlled by General Statutes § 52-555 (a)1 regarding
wrongful death claims, General Statutes § 4-1602 regard-
ing actions authorized by the Claims Commissioner, or
both. The plaintiff, Sandra Harvey, administratrix of the
estate of Isaiah Boucher, appeals from the judgment of
the Appellate Court, which affirmed the trial court’s
judgment dismissing the action against the defendants,
the Department of Correction and the University of
Connecticut Health Center Correctional Managed
Health Care,3 for lack of subject matter jurisdiction.
The plaintiff argues that the Appellate Court incorrectly
concluded that her action was time barred by § 4-160
(d). She argues that, instead, § 52-555 (a) provides the
controlling statute of limitations. We conclude that a
plaintiff in the unusual posture of the one here, who
brings a wrongful death action against the state after
having previously obtained permission to sue for medi-
cal negligence from the Claims Commissioner, must
comply with both the two year time limitation for a
wrongful death action articulated in § 52-555 (a) and the
one year time limitation on the Claims Commissioner’s
authorization to sue articulated in § 4-160 (d). Because
the plaintiff only complied with the statute of limitations
contained in § 52-555 (a) and not with the limitation
period articulated in § 4-160 (d), we affirm the judgment
of the Appellate Court.
The record reveals the following undisputed facts,
including the dates that are relevant for the limitations
periods at issue, and procedural history. In 2011, while
incarcerated, Boucher became ill and requested medi-
cal treatment from the state. In 2013, he was diagnosed
with cancer. He filed a notice of claim with the Claims
Commissioner, seeking permission to file a medical
malpractice action against the state on the basis of
allegations relating to the delay in providing diagnostic
testing and treatment. On July 16, 2015, the Claims Com-
missioner authorized Boucher to sue the state for medi-
cal malpractice. On September 26, 2015, Boucher died
as a result of his cancer.
On September 29, 2016—approximately fourteen
months after authorization was obtained from the Claims
Commissioner and 369 days after Boucher’s death—
the plaintiff, as administratrix of Boucher’s estate,
brought the present action for wrongful death against
the state. The state filed a motion to dismiss, asserting
that the action was time barred. The state argued that
a plaintiff who has obtained authorization to sue the
state from the Claims Commissioner has only one year
to do so under § 4-160 (d), and the plaintiff brought the
present action more than one year and two months after
the Claims Commissioner authorized Boucher’s action.
The plaintiff filed an objection and memorandum of law
in opposition to the motion to dismiss, arguing that the
one year time limitation contained in § 4-160 (d) was
inoperative because the two year time limitation con-
tained in § 52-555 (a) controlled her wrongful death
claim on behalf of Boucher’s estate.
The trial court granted the state’s motion to dismiss.
The court noted that the time limitation period contained
in § 4-160 (d) must be narrowly construed and strictly
applied because the statute both derogates sovereign
immunity and creates a right of action that did not exist
at common law. The court concluded that a plaintiff
seeking to bring a statutory cause of action against the
state must comply with both the one year time limitation
under § 4-160 (d) and the applicable statute of limita-
tions that governs the underlying cause of action. It
determined that the ‘‘[f]ailure to comply with either
[time limitation] deprives the court of subject matter
jurisdiction and is grounds for dismissal.’’ Thereafter,
the trial court denied the plaintiff’s motion for reconsid-
eration and reargument.
The plaintiff appealed from the judgment of the trial
court to the Appellate Court. On appeal, she claimed
that the trial court improperly granted the state’s motion
to dismiss because the two year time limitation for a
wrongful death action articulated in § 52-555 (a) cannot
be limited by § 4-160 (d). The Appellate Court affirmed
the judgment of the trial court, concluding that the
plaintiff was required to comply with both the one year
time limitation contained in § 4-160 (d) and the two
year time limitation contained in § 52-555 (a). Harvey
v. Dept. of Correction, 189 Conn. App. 93, 103, 108, 206
A.3d 220 (2019).
The Appellate Court focused on the well established
rule that a statute in derogation of sovereign immunity,
such as § 4-160 (d), must be strictly and narrowly con-
strued. See id., 100–101. Additionally, the court articu-
lated the principles concerning statutory time limitations.
See id., 101–102. Specifically, the Appellate Court
explained that a time limitation contained in a statute
that creates a right of action that did not exist at com-
mon law constitutes a substantive prerequisite to the
trial court’s subject matter jurisdiction, limiting the
defendant’s liability. See id., 102. This type of time limi-
tation, the Appellate Court reasoned, is distinguishable
from a statute of limitations applicable to a right of
action that existed at common law, which is a proce-
dural limitation on the availability of the remedy. See id.
The Appellate Court concluded that, because § 4-160
creates a right of action against the state that did not
exist at common law, the one year time limitation con-
tained within it constitutes a strict limitation on the
waiver of sovereign immunity. Id., 101–102. The Appel-
late Court explained that the waiver expired approxi-
mately two months before the plaintiff commenced the
present action, so the principles of sovereign immunity
deprived the trial court of subject matter jurisdiction.
See id., 102, 106.
The plaintiff nonetheless argued that the two year
statute of limitations contained in § 52-555 (a) ‘‘super-
seded or rendered inoperative’’ the one year limitation
on the waiver of sovereign immunity. Id., 103. The
Appellate Court rejected this argument, reasoning that
nothing in the text of § 4-160 (d) excepts wrongful death
actions from the strict, one year time limitation on the
waiver of sovereign immunity. See id.
The Appellate Court also rejected the plaintiff’s reli-
ance on Lagassey v. State, 281 Conn. 1, 5, 914 A.2d 509
(2007), and Ecker v. West Hartford, 205 Conn. 219, 226,
530 A.2d 1056 (1987). Harvey v. Dept. of Correction,
supra, 189 Conn. App. 103–105. The court distinguished
Lagassey on the ground that the plaintiff in that case
commenced her action within one year of the Claims
Commissioner’s grant of authorization to sue the state,
in compliance with § 4-160 (d). See id., 104. Nothing
in the court’s holding in Lagassey—that the plaintiff’s
action was time barred because she commenced it out-
side the two year statute of limitations for wrongful
death under § 52-555 (a)—suggested that compliance
with § 4-160 (d) was unnecessary. See id., 104–105. The
court reasoned that Ecker was inapposite because it
considered only whether the two year statute of limita-
tions could be waived; it did not consider how § 52-555
(a) impacted the court’s jurisdiction over an action that
was untimely under other applicable statutes. See id.,
105.
The Appellate Court noted that ‘‘statutes of limitations
generally are wielded by defendants as shields; their
purpose is not to provide additional substantive rights
to plaintiffs.’’ Id., 106. It concluded that the plaintiff
was required to ‘‘comply with both § 4-160 (d) and the
underlying, applicable statute of limitations in order to
timely bring an action against the state.’’ Id. Because the
Claims Commissioner’s authorization to sue had expired
when the plaintiff brought the present action, the Appel-
late Court held that sovereign immunity barred her action
and that the trial court properly granted the state’s
motion to dismiss. See id.
Thereafter, the plaintiff filed a petition for certifica-
tion to appeal, which we granted, limited to the follow-
ing issue: ‘‘Did the Appellate Court correctly conclude
that the plaintiff’s action had to be dismissed pursuant
to the sovereign immunity provisions of . . . § 4-160
(d), notwithstanding the time limitations set forth in
. . . § 52-555 for bringing a wrongful death action?’’
Harvey v. Dept. of Correction, 332 Conn. 905, 208 A.3d
1239 (2019).
After reviewing the parties’ briefs, the record, and the
oral argument, we conclude that the Appellate Court’s
reasoning and analysis were sound, and its conclusion
was correct. Nevertheless, we address two additional
points not considered by the Appellate Court that sup-
port its conclusion that the plaintiff was required to
comply with both §§ 52-555 (a) and 4-160 (d).
First, the state claims that this court recently recog-
nized that the two year statute of limitations for wrong-
ful death actions contained in § 52-555 (a) does not
supersede a time limitation in a statute that creates a
right of action that did not exist at common law. See
Soto v. Bushmaster Firearms International, LLC, 331
Conn. 53, 102–105, 202 A.3d 262, cert. denied sub nom.
Remington Arms Co., LLC v. Soto, U.S. , 140 S.
Ct. 513, 205 L. Ed. 2d 317 (2019). We agree that this
aspect of Soto provides additional support for the Appel-
late Court’s holding in the present case.
In Soto, the administrators of the estates of certain
children and school employees killed at Sandy Hook
Elementary School brought an action against the manu-
facturers, distributors, and retailers of the semiauto-
matic rifle that the assailant used to kill the decedents.
Id., 64–67. Among other causes of action, the plaintiffs
brought claims under § 52-555 (a) for wrongful death.
Id., 67. These claims alleged, inter alia, that the defen-
dants’ violations of the Connecticut Unfair Trade Prac-
tices Act (CUTPA), General Statutes § 42-110a et seq.,
provided the underlying theory of liability.4 See id. The
defendants moved to strike these claims as time barred
by CUTPA’s three year statute of limitations, reasoning
that the latest alleged CUTPA violation occurred when
the defendant retailers sold the rifle to the assailant’s
mother in March, 2010, and the plaintiffs commenced
their action on December 13, 2014, within two years of
the decedents’ deaths but more than four years after
the retailers sold the rifle. Id., 100–101. The trial court
denied the defendants’ motions to strike in this respect,
reasoning that, ‘‘when a wrongful death claim is predi-
cated on an underlying theory of liability that is subject
to its own statute of limitations, it is the wrongful death
statute of limitations that controls.’’ Id., 102.
We reversed this aspect of the judgment, holding that
the trial court should have struck as time barred those
wrongful death claims that were predicated on unfair
trade practice allegations because the plaintiffs failed
to comply with both the two year, wrongful death stat-
ute of limitations and the three year limitation period
contained in CUTPA. See id., 105. We recognized that,
‘‘in the ordinary case, § 52-555 (a) supplies the control-
ling statute of limitations regardless of the underlying
theory of liability.’’ (Emphasis added.) Id., 102. But we
reasoned that, when a statute creates a right of action
that did not exist at common law, the time limitation
provision contained in that statute limits not only the
availability of the remedy, but the existence of the right
itself. See id., 103. ‘‘For such statutes, we have said that
the limitations provision ‘embodies an essential element
of the cause of action created—a condition attached
to the right to sue at all. . . . Failure to [strictly observe
the time limitation] results in a failure to show the
existence of a good cause of action.’ ’’ Id., quoting
Blakely v. Danbury Hospital, 323 Conn. 741, 748–49,
150 A.3d 1109 (2016). We concluded that the time limita-
tion is thus a substantive element of the right of action
and must be strictly observed—including when that
right of action provides the underlying theory of liability
for a wrongful death claim. See Soto v. Bushmaster Fire-
arms International, LLC, supra, 331 Conn. 104–105.
Accordingly, we held in Soto that, because CUTPA cre-
ated a right of action that did not exist at common law,
the plaintiffs were required to comply with both the
two year limitation period under the wrongful death
statute and the three year limitation period under
CUTPA. Id., 103, 105.
Here, the state argues that our holding in Soto requires
the plaintiff to comply with both the two year limitation
period for wrongful death under § 52-555 (a) and the
one year limitation period for the waiver of sovereign
immunity under § 4-160 (d). The plaintiff concedes that
her appeal likely fails if we conclude that Soto controls.
Application of the rule from Soto turns on whether the
theory of liability underlying the plaintiff’s wrongful
death claim is a right of action that existed at common
law.
The theory of liability underlying the plaintiff’s wrongful
death claim is medical negligence, which is a cause of
action that did exist at common law. See id., 102–103
(‘‘This court applied [the rule in the ordinary case] in
Giambozi v. Peters, 127 Conn. 380, 16 A.2d 833 (1940),
overruled in part on other grounds by Foran v. Car-
angelo, 153 Conn. 356, 216 A.2d 638 (1996), in which
the court held that the statute of limitations of the
predecessor wrongful death statute, rather than the lim-
itations provision applicable to medical malpractice
claims, governed in a wrongful death action based on
malpractice. Id., 385 . . . .’’ (Citation omitted.)). Com-
mon law created the right of action for medical negli-
gence, and statutes, such as General Statutes § 52-584,
define the availability of the remedy by imposing a
limitation period. When medical negligence provides
the theory of liability for a wrongful death claim, the
negligence statute of limitations is supplanted by § 52-
555 (a), which provides the only applicable limitation
period. See, e.g., Giambozi v. Peters, supra, 385; see also,
e.g., Isaac v. Mount Sinai Hospital, 210 Conn. 721,
723, 725, 557 A.2d 116 (1989) (‘‘[i]t is undisputed’’ that
limitation period articulated in § 52-555 governs wrong-
ful death action alleging medical malpractice against
hospitals, doctor, and anesthesiology practice).
Significant to the present case, however, is the fact
that the state has always enjoyed immunity from any
action seeking damages for negligence, medical or oth-
erwise. ‘‘The principle that the state cannot be sued with-
out its consent, or sovereign immunity, is well estab-
lished 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; inter-
nal quotation marks omitted.) C. R. Klewin Northeast,
LLC v. Fleming, 284 Conn. 250, 258, 932 A.2d 1053
(2007). Section 4-160 created the right to sue the state
for medical negligence, subject to authorization by the
Claims Commissioner, so the one year time limitation
in § 4-160 (d) is not supplanted by § 52-555 (a). As such,
a plaintiff’s right to sue the state exists only during the
one year period authorized by the Claims Commis-
sioner.
Because the right of action providing the theory of
liability that underlies the plaintiff’s wrongful death
claim could not be maintained against the state at com-
mon law, Soto further establishes that the plaintiff was
required to comply with both the two year statute of
limitations for wrongful death under § 52-555 (a) and
the one year limitation period for the Claims Commis-
sioner’s authorization to sue the state under § 4-160 (d).
The second point not directly considered by the
Appellate Court involves our decision in Leahy v.
Cheney, 90 Conn. 611, 98 A. 132 (1916). On appeal to
this court, the plaintiff contends that the reasoning in
Leahy supports her argument that the two year time
limitation for a wrongful death action should control.
In that case, the plaintiff, the executrix of an employee,
sued the defendants, the executors of the employer, for
breach of contract. See id., 612–13. The plaintiff filed her
action within the six year limitation period for breach
of contract but more than one year after the employee
died. See id., 613–14. The defendants argued that the
plaintiff’s action was time barred because General Stat-
utes (1902 Rev.) § 11285 required the plaintiff to bring
it within one year of the decedent employee’s death.
See id., 613.
This court rejected the defendants’ argument, reason-
ing instead that § 1128 ‘‘was not intended to shorten
the statutory time’’ for the action to be brought; id.;
but, rather, was meant to give the decedent’s executor
or administrator, at minimum, one ‘‘full year in which
to take out administration, learn of the existence of the
claim, and bring [an action].’’ Id., 614. We concluded
that § 1128 provided the executor or administrator of
an estate as much time as remained of the unexpired
limitation period at the time of the decedent’s death,
except that, if the limitation period were to expire
within one year of the decedent’s death, then it would
extend to one year from the date of the decedent’s death.
See id.
In the present case, the plaintiff characterizes § 1128
as ‘‘the then applicable wrongful death statute’’ and
argues that this court’s reasoning in Leahy supports
her argument that the two year limitation period from
§ 52-555 (a) should supersede the one year limitation
period from § 4-160 (d). This argument is unpersuasive
for two reasons.
First, § 1128 was not the predecessor statute to § 52-
555. The legislature renumbered § 1128 as General Stat-
utes § 52-594 and amended § 52-594 in 1982. Both of
these substantially similar statutes provide one year
from the date of a decedent’s death for an administrator
or executor to commence an action for which the stat-
ute of limitations would expire during that year. See
footnote 5 of this opinion. Neither statute creates a cause
of action for wrongful death. As such, our analysis in
Leahy of the purpose of § 1128 is not probative of the
statutes at issue in this case.
Second, even if the plaintiff were correct that Leahy
is applicable to her action, our holding in Leahy would
fail to save her cause of action from dismissal. Before
the Appellate Court, the plaintiff similarly argued that
§ 52-594 extended the Claims Commissioner’s waiver
of sovereign immunity. Harvey v. Dept. of Correction,
supra, 189 Conn. App. 106–107. The Appellate Court
reasoned that, even if that were true, the plain text
of § 52-594 indicates that it would extend the Claims
Commissioner’s waiver of sovereign immunity by only
one year from the date of Boucher’s death. See id.,
108. The limitation period would have then expired on
September 26, 2016. Id. ‘‘[U]nder the law of our state,
an action is commenced not when the writ is returned
but when it is served [on] the defendant.’’ (Footnote
omitted; internal quotation marks omitted.) Rocco v.
Garrison, 268 Conn. 541, 549, 848 A.2d 352 (2004). Here,
the plaintiff served the state on September 29, 2016.
Harvey v. Dept. of Correction, supra, 108. We conclude
that, even if Leahy were applicable, § 52-594 would not
save the plaintiff’s cause of action.
In sum, having reviewed the briefs of the parties and
the record on appeal, we conclude that the issue on
which we granted certification was properly resolved
in the well reasoned decision of the Appellate Court.
Consistent with that conclusion, we further conclude
that our decision in Soto v. Bushmaster Firearms Inter-
national, LLC, supra, 331 Conn. 53, requires a plaintiff
who brings an action for wrongful death to comply with
both the two year statute of limitations contained in
§ 52-555 (a) and the limitation period contained in the
statute providing the underlying theory of liability,
when that theory did not exist as a right of action at
common law. See id., 105. On the basis of the foregoing,
we conclude that the Appellate Court properly upheld
the trial court’s granting of the state’s motion to dismiss
for lack of subject matter jurisdiction.
The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.
* The listing of justices reflects their seniority status on this court as of
the date of oral argument.
** October 9, 2020, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
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.’’
2
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. . . .’’
Although § 4-160 was the subject of amendments in 2016 and 2019; see
Public Acts 2019, No. 19-182, § 4; Public Acts 2016, No. 16-127, § 19; those
amendments have no bearing on the merits of this appeal. In the interest
of simplicity, we refer to the current revision of the statute.
3
For convenience, we hereinafter refer to the defendants, collectively, as
the state.
4
CUTPA provided two underlying legal theories of liability. First, the
plaintiffs in Soto claimed that the defendants’ sale of the military grade
weapon into the civilian market was a negligent and unfair trade practice.
Soto v. Bushmaster Firearms International, LLC, supra, 331 Conn. 73.
Second, the plaintiffs claimed that the defendants marketed and advertised
the weapon in an unethical manner. Id. Only the first theory of liability is
relevant to the present case.
5
As this court explained, General Statutes (1902 Rev.) § 1128 provided
that, ‘‘where the time limited for the commencement of any personal action,
which by law survives to the representatives of a deceased person, shall
not have elapsed at the time of his decease, the term of one year from the
time of such decease shall be allowed to his executor or administrator to
institute a suit therefor, and that in such cases such term shall be excluded
from the computation.’’ Leahy v. Cheney, supra, 90 Conn. 613, citing General
Statutes (1902 Rev.) § 1128.
Hereinafter, all references to § 1128 are to the 1902 revision of the statute.