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LARMEL v. METRO NORTH COMMUTER RAILROAD CO.—DISSENT
ECKER, J., with whom ROBINSON, C. J., joins, dis-
senting. The majority holds that an action that has been
submitted to court-ordered arbitration under General
Statutes § 52-549u has been ‘‘tried on its merits’’ within
the meaning of General Statutes § 52-592 (a), a savings
statute that we have repeatedly stated, since its enact-
ment 160 years ago, must be construed liberally to effec-
tuate its remedial purpose.1 It is clear to me that the
informal arbitration proceeding at issue lacks the for-
mality or procedural protections of a trial, and, there-
fore, the present case has not been ‘‘tried on its merits’’
under § 52-592 (a). Accordingly, I would reverse the
judgment of the Appellate Court and remand the case
to the trial court to determine whether the plaintiff,
Phyllis Larmel, has satisfied the other condition neces-
sary to qualify for relief under the savings statute.2
The majority holds that the plain language of the
phrase ‘‘tried on its merits’’ in § 52-592 (a) includes a
case resolved by arbitration pursuant to § 52-549u. I
have difficulty understanding the basis for this conclu-
sion. It is not supported by any of the dictionary defini-
tions cited in the majority opinion, all of which require
that the inquiry or examination proceed ‘‘judicially.’’
E.g., Merriam-Webster’s Collegiate Dictionary (11th Ed.
2014) p. 1344. On its face, that qualification would
appear to exclude an arbitration, certainly a nonbinding,
informal arbitration conducted by an attorney under
§ 52-549u.3 This conclusion finds strong support in the
fact that the savings statute applies only to an ‘‘action’’
that has failed to be tried on its merits.4 See General
Statutes § 52-592 (a) (‘‘If any action, commenced within
the time limited by law, has failed one or more times
to be tried on its merits . . . .’’ (Emphasis added.)).
An ‘‘action’’ in this context means a civil lawsuit, not
an arbitration.5 As far as I am aware, moreover, an
action is ‘‘tried on its merits’’ at a trial, that is, a formal,
binding adjudication presided over by a judge or other
official authorized to carry out the judicial function.
This is what ‘‘tried on its merits’’ meant around the
time that the accidental failure of suit statute was first
enacted,6 and I have no reason to believe that the mean-
ing of the phrase is appreciably different today. I have
not seen any lexical or legal authority that would sup-
port the majority’s contrary view, as a matter of plain
language or otherwise.
I agree with the majority that ‘‘[t]he question of
whether a particular case has been ‘tried on its merits’
within the meaning of [the accidental failure of suit
statute] . . . turns on the basis of the judgment ulti-
mately rendered’’; (emphasis in original) footnote 7 of
the majority opinion; but I disagree that the judgment
rendered by the trial court in this case ‘‘turned on the
merits of the claims raised’’ by the plaintiff. The trial
court, in fact, never assessed the merits of the plaintiff’s
claims, and judgment was rendered with absolutely no
consideration of the merits. Exactly the opposite
occurred—the trial court automatically rendered judg-
ment after the plaintiff failed to file a timely demand
for a trial de novo in accordance with General Statutes
(Rev. to 2017) § 52-549z. Because the basis of the trial
court’s judgment was a ‘‘procedural [reason] and not
on the merits,’’ there is no doubt that Connecticut’s
accidental failure of suit statute applies. Holt v. KMI-
Continental, Inc., 95 F.3d 123, 131 (2d Cir. 1996), cert.
denied, 520 U.S. 1228, 117 S. Ct. 1819, 137 L. Ed. 2d
1027 (1997).
Indeed, in Nunno v. Wixner, 257 Conn. 671, 778 A.2d
145 (2001), we expressly held that ‘‘[c]ourt-mandated
arbitration proceedings pursuant to § 52-549u do not
include many of the distinctive hallmarks of a trial’’;
id., 679; and, therefore, ‘‘do not constitute a trial . . . .’’
Id., 681. Nunno enumerates the myriad ways in which
an arbitration proceeding is not equivalent to a trial in
a civil action, both as a general matter and under the
particular procedures applicable to an arbitration under
§ 52-549u. See id., 678–80.7 The court in Nunno also
observed that the actual arbitration procedures fol-
lowed by the parties in that case, which were essentially
the same procedures utilized in the present case, sup-
ported the conclusion that the arbitration proceeding
was not a trial: ‘‘[N]o witnesses testified for either party
and no formal exhibits were offered. The parties merely
submitted copies of a police report, photographs, tran-
scripts of depositions, medical reports and medical
bills. The parties also summarized their respective cases
through their counsel. After reviewing all of the infor-
mation provided, the arbitrator issued his nonbinding
award. The arbitration proceedings . . . differed
greatly from a trial. The procedures were informal and
parties were allowed to present unsworn evidence.
None of the rules of evidence applied in this proceeding.
In addition, the proceeding was presided over by a
nonjudicial officer, whose decision was not binding on
the parties. The court-mandated arbitration proceeding
. . . case did not constitute a trial.’’ Id., 680–81.
Finally, and importantly, the court in Nunno relied
on the legislative history of § 52-549u to demonstrate
that the legislature did not intend a court-mandated
arbitration proceeding to be a trial (or, in the statutory
language applicable here, a proceeding in which an
‘‘action’’ has been ‘‘tried on its merits’’). As the court in
Nunno observed, the ‘‘legislative history demonstrates
that the legislature intended these arbitration proceed-
ings to be a form of alternative dispute resolution
designed to assist parties to settle cases voluntarily.
In 1997, during the course of the legislative debates
concerning the enactment of the bill that later amended
§ 52-549u, the members of the House of Representatives
discussed the purpose of the court-mandated arbitra-
tion proceedings. In the course of the debate, Represen-
tative Michael P. Lawlor, a proponent of the bill, was
asked why the rules of evidence would not apply in
these arbitration proceedings. 40 H.R. Proc., Pt. 4, 1997
Sess., p. 1391. Representative Lawlor replied that ‘[t]his
whole process of arbitration is an [alternative] dispute
resolution mechanism [that is] intended to avoid unnec-
essary court delays. In effect these are the two parties
sitting down with an impartial hearing officer to fig-
ure out if there is a resolution to the case [that] would
avoid a lengthy and expensive trial. . . . [T]his is
what you might consider an elaborate [pretrial] dis-
cussion.’ . . . Id., pp. 1391–92. Representative Lawlor
went on to indicate that the purpose of the legislation
was ‘essentially trying to encourage as many people as
possible to go this route for a relatively small case
where there are relatively simple issues at hand.’ Id.,
p. 1393. Representative Lawlor’s comments clearly indi-
cate that the legislature did not understand these arbi-
tration proceedings to be a trial, or its equivalent. To the
contrary, we conclude[d] [in Nunno] that the legislature
intended these arbitration proceedings to be a desir-
able, informal means of resolving disputes before trial.’’
(Emphasis in original.) Nunno v. Wixner, supra, 257
Conn. 682–83. I therefore agree with Justice Eveleigh’s
dissenting opinion that our holding in Nunno effectively
dictates the outcome of the present appeal because,
under the ineluctable logic and reasoning of that case,
‘‘whe[n] an arbitration lacks the formalities and hall-
marks of a judicial proceeding, as it does here, pursuant
to the statutory scheme of § 52-549 et seq., it cannot
constitute a trial.’’ Larmel v. Metro North Commuter
Railroad Co., 200 Conn. App. 660, 682, 240 A.3d 1056
(2020) (Eveleigh, J., dissenting).
The majority seeks to distinguish Nunno on the
ground that there is a distinction between the meaning
of the word ‘‘trial’’ in our offer of compromise statute,
General Statutes § 52-192a, and the phrase ‘‘tried on its
merits’’ in our accidental failure of suit statute, § 52-
592 (a). I fail to see any meaningful difference between
an action being ‘‘tried’’ and the ‘‘trial’’ of an action.
Although the word ‘‘tried’’ is a verb and the word ‘‘trial’’
is a noun, they refer to the same thing: an action is
‘‘tried on its merits’’ in a ‘‘trial.’’ It is, of course, true
that the present case involves § 52-592 rather than § 52-
192a, but the fundamental inquiry in both Nunno and
the present case is the same, namely, whether the legis-
lature intended a court-mandated arbitration proceed-
ing under § 52-549u to constitute a ‘‘trial’’ of the action
such that it has been ‘‘tried on its merits.’’ The conso-
nance is both logical and meaningful. I cannot imagine
an action that results in a recovery for a plaintiff ‘‘[a]fter
trial’’; General Statutes § 52-192a (c); that has not also
been tried on its merits. Nor can I envision an action
that has been tried on its merits without first having
been decided in a trial.8
Contrary to the majority’s assertion, the ‘‘finality’’ of
the trial court’s judgment is not an unacceptable or
unwarranted casualty under the circumstances of this
case.9 Indeed, the very purpose and effect of § 52-592
is to remove the finality of any judgment within its
scope. Judgment has always been rendered against a
plaintiff in every case in which a second action is reini-
tiated under § 52-592. The policy embedded in the stat-
ute dictates that finality is a concern only if the underly-
ing judgment was rendered after being ‘‘tried on its
merits.’’ See Peabody N.E., Inc. v. Dept. of Transporta-
tion, 250 Conn. 105, 127, 735 A.2d 782 (1999) (‘‘[i]t is
the policy of the law to bring about a trial on the merits
of a dispute whenever possible and to secure for the
litigant his day in court’’ (emphasis added; internal
quotation marks omitted)); Contadini v. DeVito, 71
Conn. App. 697, 702, 803 A.2d 423 (‘‘[t]he saving[s] stat-
ute has a broad and liberal purpose and ensures the
plaintiff the right to a trial of his claim’’ (emphasis
added)), cert. denied, 262 Conn. 918, 812 A.2d 862
(2002). Rendering judgment does not transform an
action that was not tried on the merits into an action
that was tried on the merits. Judgment was not rendered
in the present case because the action was tried on the
merits; judgment was rendered because the plaintiff’s
lawyer neglected to timely file a piece of paper demanding
a trial on the merits.
Similarly, effectuating the remedial purpose of § 52-
592 by permitting a plaintiff to reinitiate an action after
judgment does not ‘‘undermine the purpose of the
twenty day deadline set forth in § 52-549z (d),’’ as the
majority states, any more than it undermines the pur-
poses served by statutes of limitations, sovereign immu-
nity, disciplinary dismissals, or a variety of other filing
requirements.10 See, e.g., Plante v. Charlotte Hungerford
Hospital, 300 Conn. 33, 46–47, 12 A.3d 885 (2011) (acci-
dental failure of suit statute was applicable to dismissal
of medical malpractice action under General Statutes
§ 52-190a (c) for failure to supply opinion letter
authored by similar health care provider, provided fail-
ure was ‘‘[a] matter of form’’); Ruddock v. Burrowes,
243 Conn. 569, 576, 706 A.2d 967 (1998) (‘‘disciplinary
dismissals are not excluded categorically from the relief
afforded by § 52-592 (a)’’); Capers v. Lee, 239 Conn.
265, 271, 684 A.2d 696 (1996) (accidental failure of suit
statute, which ‘‘applies only when there has been an
original action that had been commenced in a timely
fashion,’’ was enacted ‘‘to avoid hardships arising from
an unbending enforcement of limitation statutes’’ (inter-
nal quotation marks omitted)); Lacasse v. Burns, 214
Conn. 464, 470–71, 572 A.2d 357 (1990) (concluding,
‘‘on the basis of the language and evident purpose of
§ 52-592,’’ that statute applies ‘‘to the state in the same
manner as it would . . . to any other litigant’’). As we
previously have observed, the language of § 52-592 ‘‘is
general and comprehensive. It neither embodies excep-
tions or reservations, nor suggests any.’’ Korb v. Bridge-
port Gas Light Co., 91 Conn. 395, 401, 99 A. 1048 (1917).
By all appearances, the legislature’s use of the phrase
‘‘tried on its merits’’ in § 52-592 (a) was deliberate and
fully informed. Indeed, the relevant language has
remained unchanged for more than one century. Far
from enacting restrictions, the legislature has expanded
the scope of the statute over time.11 It presumably has
done so in recognition of the fact that justice is best
served when courts decide cases on their merits. Justice
Shea made this point in his concurring opinion in
Andrew Ansaldi Co. v. Planning & Zoning Commis-
sion, 207 Conn. 67, 540 A.2d 59 (1988), in which he
observed that the ‘‘accidental failure of suit statute,
permitting a new action to be commenced after the
original action has been defeated ‘for any matter of
form’ ’’; id., 76 (Shea, J., concurring); was designed to
ameliorate the harshness of the common law in order
for parties to have their cases resolved, not on the basis
of the neglect of the lawyer but, rather, on the merits.
See id. 75–76 (Shea, J., concurring) (‘‘[b]eginning in the
middle of the nineteenth century . . . our legislature
enacted numerous procedural reforms applicable to
ordinary civil actions that are designed to ameliorate the
consequences of many deviations from the prescribed
norm, which result largely from the fallibility of the
legal profession, in order generally to provide errant
parties with an opportunity for cases to be resolved on
their merits rather than dismissed for some technical
flaw’’).
Of course, the remedial purpose of § 52-592 ‘‘is not
without limits. . . . Even the saving[s] statute does not
guarantee that all plaintiffs have the opportunity to have
their cases decided on the merits. It merely allows them
a limited opportunity to correct certain defects in their
actions within a certain period of time.’’ (Internal quota-
tion marks omitted.) Santorso v. Bristol Hospital, 308
Conn. 338, 355, 63 A.3d 940 (2013). In order to ‘‘ ‘save’
[a] deficient [action]’’ under our accidental failure of
suit statute; Peabody N.E., Inc. v. Dept. of Transporta-
tion, supra, 250 Conn. 128; a plaintiff must establish
not only that the first action was not ‘‘tried on its merits’’
but also that it was ‘‘otherwise avoided or defeated
. . . for any matter of form . . . .’’12 General Statutes
§ 52-592 (a). We have declined to construe the phrase
‘‘matter of form’’ as creating a sharp distinction between
matters of procedure and those ‘‘of substance . . .
embracing the real merits of the controversy between
the parties.’’ (Internal quotation marks omitted.) Plante
v. Charlotte Hungerford Hospital, supra, 300 Conn. 50;
see Lacasse v. Burns, supra, 214 Conn. 472–74. Instead,
we have held that whether an action has failed due to
a ‘‘matter of form’’ is a ‘‘fact-sensitive . . . inquiry,’’
and a plaintiff must be afforded an opportunity to make
a factual showing that the failure of the case to be
tried on its merits was due to a ‘‘good faith mistake,
inadvertence or excusable neglect,’’ as opposed to the
‘‘egregious conduct by an attorney or party . . . .’’
Plante v. Charlotte Hungerford Hospital, supra, 50–51;
see Ruddock v. Burrowes, supra, 243 Conn. 576
(‘‘[w]hether the [accidental failure of suit] statute
applies cannot be decided in a factual vacuum’’); see
also Skinner v. Doelger, 99 Conn. App. 540, 554, 915
A.2d 314 (whether prior action failed as ‘‘matter of
form’’ ‘‘may be conceptualized as a continuum where-
upon a case must be properly placed between one
extreme of dismissal for mistake and inadvertence, and
the other extreme of dismissal for serious misconduct
or cumulative transgressions’’), cert. denied, 282 Conn.
902, 919 A.2d 1037 (2007).
In the absence of factual findings by the trial court,
we cannot determine on appeal whether the plaintiff’s
failure to file a demand for a trial de novo within twenty
days was due to mistake, inadvertence or excusable
neglect on the one hand, or egregious conduct on the
other. Accordingly, I would remand the case to the trial
court for a factual determination as to whether the first
action was defeated for a ‘‘matter of form’’ under § 52-
592 (a).
I therefore respectfully dissent.
1
‘‘The first case construing [the accidental failure of suit] statute was
Johnston v. Sikes, 56 Conn. 589 [Super. 1888]. It definitely established that
the statute was remedial and should be liberally interpreted.’’ Baker v.
Baningoso, 134 Conn. 382, 386–87, 58 A.2d 5 (1948); see Johnston v. Sikes,
supra, 596 (‘‘a very liberal construction is to be given to the’’ savings statute).
We have liberally interpreted the statute for more than one century. See,
e.g., Dorry v. Garden, 313 Conn. 516, 530, 98 A.3d 55 (2014) (observing that
‘‘[§ 52-592] is remedial in nature’’ and, therefore, ‘‘must be afforded a liberal
construction in favor of those whom the legislature intended to benefit’’
(internal quotation marks omitted)); Ruddock v. Burrowes, 243 Conn. 569,
575, 706 A.2d 967 (1998) (citing ‘‘a long line of cases [holding] that § 52-592
(a) is remedial in nature and, therefore, warrants a broad construction’’);
Lacasse v. Burns, 214 Conn. 464, 470, 572 A.2d 357 (1990) (‘‘we have consis-
tently held that § 52-592 is remedial in nature and thus, should be broadly
and liberally construed’’).
2
In addition to establishing that the first action was not ‘‘tried on its
merits,’’ the plaintiff in the present case would be entitled to the benefit of
the savings statute only if she demonstrates that the first action was ‘‘avoided
or defeated . . . for any matter of form . . . .’’ General Statutes § 52-592
(a). I discuss this additional requirement later in this dissenting opinion.
3
Contrary to the majority’s assertion, an arbitration held pursuant to § 52-
549u is not a ‘‘quasi-judicial’’ proceeding; nor is an arbitrator appointed
pursuant to General Statutes § 52-549w ‘‘statutorily authorized to carry out
functions that are judicial in nature.’’ All attorneys admitted to practice in
Connecticut, while in good standing, are commissioners of the Superior
Court with the power to ‘‘sign writs and subpoenas, take recognizances,
administer oaths and take depositions and acknowledgments of deeds,’’ as
well as to ‘‘issue subpoenas to compel the attendance of witnesses . . . .’’
General Statutes § 51-85. Although an arbitrator has the power to ‘‘determine
the admissibility of evidence and the form in which it is to be offered’’;
General Statutes § 52-549w (c) (3); he or she is not constrained by the rules
of evidence in doing so; see Practice Book § 23-63; and, most important,
any judgment rendered is of no force or effect if either party rejects it simply
by filing a one sentence demand for a trial de novo. The arbitrator thus
exercises no true judicial function.
4
I agree entirely with the majority’s statement that the word ‘‘try’’ may
be defined ‘‘in a broad manner’’ depending on the context of its usage. See,
e.g., Nixon v. United States, 506 U.S. 224, 228–29, 113 S. Ct. 732, 122 L. Ed.
2d 1 (1993) (construing meaning of ‘‘try’’ in article first, § 3, clause 6, of
United States constitution, which provides that ‘‘ ‘[t]he Senate shall have
the sole Power to try all Impeachments’ ’’ (emphasis added)). But the context
here is provided by § 52-592, the statute under construction, and the legisla-
ture did not use the phrase ‘‘tried on its merits’’ in a broad or informal
manner therein; instead, the plain language of the statute refers to the
formalities attendant to a trial before a judge. Section 52-592 provides in
relevant part that a plaintiff ‘‘may commence a new action’’ only if the
original ‘‘action’’ was ‘‘commenced within the time limited by law’’ and
‘‘failed . . . to be tried on its merits’’ due to ‘‘any matter of form,’’ such as
‘‘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 . . . .’’ (Emphasis
added.) General Statutes § 52-592 (a). In light of the ‘‘basic tenet of statutory
construction that the intent of the legislature is to be found not in an isolated
phrase or sentence but, rather, from the statutory scheme as a whole’’;
(internal quotation marks omitted) Wiseman v. Armstrong, 269 Conn. 802,
820, 850 A.2d 114 (2004); we must consider the meaning of the phrase ‘‘tried
on its merits’’ in conjunction with the statutory references to actions, statutes
of limitations, service of process, and jurisdiction. Construing the statute
as a whole, as this court is required to do, it is an inescapable conclusion
that the legislature intended the phrase ‘‘tried on its merits’’ to refer to a
trial in court, which is where actions are tried in Connecticut.
5
See, e.g., Capers v. Lee, 239 Conn. 265, 266–67, 684 A.2d 696 (1996)
(notice of claim filed with office of claims commissioner pursuant to General
Statutes § 4-147 is not ‘‘an ‘action’ ’’ under § 52-592 (a)); Bank Building &
Equipment Corp. v. Architectural Examining Board, 153 Conn. 121, 124–25,
214 A.2d 377 (1965) (appeal from order of architectural examining board
was not ‘‘an ‘action’ ’’ under § 52-592 (a) or ‘‘a ‘civil action’ ’’ under General
Statutes § 52-593); Arute Bros., Inc. v. Dept. of Transportation, 87 Conn.
App. 367, 369, 865 A.2d 464 (‘‘[an] arbitration proceeding [under General
Statutes § 4-61] is not an action under § 52-592 [a]’’), cert. denied, 273 Conn.
918, 871 A.2d 370 (2005).
6
See, e.g., Rutkoski v. Zalaski, 90 Conn. 108, 115, 96 A. 365 (1916) (referring
to action filed and adjudicated in Superior Court as ‘‘tried on its merits’’);
Downie v. Nettleton, 61 Conn. 593, 594, 24 A. 977 (1892) (same).
7
For example, the decision maker is a lawyer, there is no record of the
proceedings, and the parties are not bound by the rules of evidence. See
Practice Book § 23-63.
8
The majority states that ‘‘the word ‘tried’ has frequently been used in
reference to alternative dispute resolutions outside of a formal trial, includ-
ing arbitration proceedings.’’ Whatever nomenclature may be used in connec-
tion with a formal arbitration, I would be very surprised if any lawyer or
judge would describe a case as having been ‘‘tried’’ at an informal, court-
mandated arbitration proceeding under § 52-549u.
9
The majority’s reliance on Carbone v. Zoning Board of Appeals, 126
Conn. 602, 13 A.2d 462 (1940), and its progeny is misplaced because those
cases hold that an appeal from an administrative decision is not an ‘‘action,’’
as defined by § 52-592 (a), and say nothing about whether the matter has
been ‘‘tried on its merits.’’ Moreover, the policy interests underlying those
cases are inapplicable because the purpose of a court-ordered arbitration
under § 52-549u is not to obtain a final determination of disputed issues but
to reach a settlement that both parties find acceptable. Unlike the decision
of an administrative agency, which must be affirmed on appeal unless ‘‘the
[agency] has acted unreasonably, arbitrarily, illegally, or in abuse of its
discretion’’; (internal quotation marks omitted) Cadlerock Properties Joint
Venture, L.P. v. Commissioner of Environmental Protection, 253 Conn.
661, 669, 757 A.2d 1 (2000), cert. denied, 531 U.S. 1148, 121 S. Ct. 1089, 148
L. Ed. 2d 963 (2001); the decision of the arbitrator ‘‘shall become null and
void’’ and ‘‘shall not be admissible in any proceeding’’ after a demand for
a trial de novo is filed. General Statutes § 52-549z (b) and (d).
10
The majority expresses the related concern that effectuating the reme-
dial purpose of § 52-592 in the present case would create ‘‘an inequitable
result’’ because a defendant who misses the twenty day deadline cannot
obtain relief under the statute. Footnote 8 of the majority opinion. But this
result is inherent in a statute that provides a remedy to the plaintiff whose
action is defeated without a trial because of a ‘‘matter of form’’ within the
meaning of the statute. There are many deadlines that apply to both parties,
the violation of which may be fatal to either party’s case. For example,
failure to comply with the deadlines governing discovery may result in the
entry of a nonsuit or default judgment. See Practice Book § 13-14 (b) (1).
Under such circumstances, a defendant’s only recourse is to file postjudg-
ment motions (for reconsideration or to open the judgment) or an appeal
challenging the judgment, whereas a plaintiff may file a second action under
§ 52-592 (a) provided that the requirements of the accidental failure of suit
statute have been met. See, e.g., Ruddock v. Burrowes, supra, 243 Conn.
576 (‘‘disciplinary dismissals are not excluded categorically from the relief
afforded by § 52-592 (a)’’). To the extent that such a result is inequitable,
the inequity is consistent with the express language of § 52-592 (a) and the
intent of the legislature, and the rectification of any such inequity should
come from the legislature, not this court.
11
See Baker v. Baningoso, 134 Conn. 382, 386, 58 A.2d 5 (1948) (‘‘[the
statute] has been amended repeatedly to cover additional situations but its
basic provisions have not been changed’’); see also Broderick v. Jackman,
167 Conn. 96, 98–99, 355 A.2d 234 (1974) (reviewing history of statutory
amendments and expansion of ‘‘ground[s] [that] could be used as the basis
for commencing a new action’’ under § 52-592 and predecessor statutes).
Chief Justice Peters, writing for the court in 1998, interpreted the pattern
of legislative expansion to indicate agreement with this court’s rule of liberal
construction: ‘‘Apparently acceding in our assessment of its [remedial]
intent, the legislature, over the years, repeatedly has broadened eligibility
for the relief afforded by the statute.’’ Ruddock v. Burrowes, supra, 243
Conn. 575.
12
For example, an action resolved on the merits by way of summary
judgment cannot be reinitiated under § 52-592 (a) because the rendering of
summary judgment is not as a ‘‘matter of form . . . .’’ See Boone v. William
W. Backus Hospital, 102 Conn. App. 305, 314, 925 A.2d 432 (plaintiff could
not reinitiate second action after rendering of summary judgment because
plaintiff’s failure to disclose expert witness did not ‘‘[amount] to a mistake
as a matter of form under § 52-592 (a)’’), cert. denied, 284 Conn. 906, 931
A.2d 261 (2007); see also Hughes v. Bemer, 206 Conn. 491, 495, 538 A.2d
703 (1988) (dismissal of action for failure to file memorandum of law in
opposition to motion to strike ‘‘is not a matter of form’’ under § 52-592). I
therefore disagree with the majority that, ‘‘if the meaning of the phrase
‘tried on its merits’ is limited to cases in which there has been a formal
‘trial,’ an action resolved on the merits prior to a court or jury trial, for
example, by way of summary judgment, could well be open to relitigation
through § 52-592 (a).’’