Capers v. Lee

BERDON, J., with whom MCDONALD, J.,

joins, dissenting. This court’s narrow reading of General Statutes § 52-592 deprives the plaintiff of his day in court to seek damages for the wrongful death of his decedent. The plaintiff, Paul M. Capers, administrator of the estate of Donnie J. Capers, his decedent, seeks damages from the defendant state of Connecticut for the wrongful death of his decedent who, on June 1, 1990, was struck by a police cruiser allegedly operated at an excessive *276and unreasonable rate of speed by the defendant, Warren J. Lee, a state police officer, while responding to a burglary. The plaintiff filed a claim with the claims commissioner for the state of Connecticut (claims commissioner) dated October 18, 1990. Approximately four years later, after the running of the statute of limitations, the claims commissioner dismissed the claim.

The claims commissioner granted the state’s motion to dismiss, holding that General Statutes § 4-142 (2) provides that he did not have jurisdiction to consider a “claim upon which suit otherwise is authorized by law.” The claims commissioner concluded that General Statutes § 52-556 authorized a direct action against the state and, as such, deprived him of the authority to hear the claim.

The claims commissioner also found the following: “In dismissing this claim, however, the [claims] commissioner must note that this case was timely filed. No response has been received by the state of Connecticut for some years on this case except that both parties had apprised the [claims] commissioner early on in the case that there would be an attempt to settle this claim within the scope of the fleet policy and the state police professional liability policy.

“Connecticut General Statutes § 52-592 appears to apply in cases such as this where [an action], otherwise authorized, has not been filed for some accidental reason. The claimant in this case was under the impression that the matter was within the jurisdiction of the claims commissioner. There was no action on the part of the [claims] commissioner sua sponte to dismiss this case nor was there action early on by the attorney general’s office to have this [case] dismissed. Apparently, all parties believed in good faith that the matter would be settled via insurance coverage prior to the institution of any formal litigation.

*277“Therefore, although I am dismissing this matter, I’m doing so with full knowledge that the claimant will no doubt proceed to file an action in court directly pursuant to General Statutes § 52-592. If further action is required by this commission, the claimant should so apprise the [claims] commissioner.”

The plaintiff brought the present action pursuant to the accidental failure of suit statute, § 52-592, which provides in pertinent part: “(a) If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits because . . . the action has been dismissed for want of jurisdiction . . . the plaintiff . . . may commence a new action . . . for the same cause at any time within one year after the determination of the original action . . ."1 One of the obvious purposes of § 52-592 is to avoid an injustice where the plaintiff has taken a course of action to preserve his or her rights, but the forum in which he or she sought relief was not the correct one. Section 52-592 “by its plain language, is designed to prevent a miscarriage of justice if the plaintiff fails to get a proper day in court due to the various enumerated procedural problems.” Legassey v. Shulansky, 28 Conn. App. 653, 659, 611 A.2d 930 (1992). A justification for allowing this relief is that the defendant is not disadvantaged because the defendant is put on notice within the applicable limitations period that a claim for the incident was being made. Section 52-592 was adopted “to avoid the hardships arising from an unbending enforcement of limitation statutes.” Gallo v. G. Fox & Co., 148 Conn. 327, 329, 170 A.2d 724 (1961). Indeed, we have long held that § 52-592 “is remedial and is to be liberally interpreted.” Ross Realty Corp. v. Surkis, 163 Conn. 388, 393, 311 A.2d 74 (1972).

Within the context of these considerations, it must be determined whether the filing of a claim with the *278claims commissioner constitutes an “action” within the meaning of § 52-592. This court has previously stated that “the word ‘action’ has no precise meaning and the scope of proceedings which will be included within the terms as used in the statutes depends upon the nature and purpose of the particular statute in question.” Carbone v. Zoning Board of Appeals, 126 Conn. 602, 605, 13 A.2d 462 (1940).2 In my view, the filing of a claim with the claims commissioner, which put the state on formal notice of the plaintiffs claim that he was seeking $7,500,000 in damages for the wrongful death of his decedent and permission to bring an action against the state for those damages, comes within the provisions of § 52-592.

Even under the majority’s narrow interpretation of the term action, a claim filed with the claims commissioner would satisfy that definition. The definition of action that the majority adheres to is the lawful demand of one’s right in a judicial proceeding. Because the proceedings before the claims commissioner are quasi-judicial, they meet that narrow definition.

“In determining whether a proceeding is quasi-judicial . . . our review is not limited to the label of the *279proceeding, but includes a review of the proceeding itself. The principal factors to be considered ‘are whether the body has the power to: (1) exercise judgment and discretion; (2) hear and determine or to ascertain facts and decide; (3) make binding orders and judgments; (4) affect the personal or property rights of private persons; (5) examine witnesses and hear the litigation of the issues on a hearing; and (6) enforce decisions or impose penalties.’ Kelley v. Bonney, 221 Conn. 549, 567, 606 A.2d 693 (1992); see also Magnan v. Anaconda Industries, Inc., 37 Conn. Sup. 38, 43, 429 A.2d 492 (1980), rev’d on other grounds, 193 Conn. 558, 479 A.2d 781 (1984). Further, quasi-judicial is defined as ‘the action, discretion, etc., of public administrative officers or bodies, who are required to investigate facts, or ascertain the existence of facts, hold hearings, weigh evidence, and draw conclusions from them, as a basis for their official action, and to exercise discretion of a judicial nature.’ Black’s Law Dictionary (6th Ed. 1990).” Field v. Kearns, 43 Conn. App. 265, 271-72, 682 A.2d 148 (1996). The claims commissioner meets all of these criteria and, therefore, performs quasi-judicial functions.

The claims commissioner’s quasi-judicial functions include, among other things, the broad power to: (1) conduct hearings on claims;3 (2) enact rules of proce*280dure for those hearings;4 (3) make findings of fact and render decisions;5 (4) pay claims in appropriate situations;6 or (5) make recommendations, in certain situations, to the General Assembly for the payment or rejection of claims.7 In addition, “[w]hen the claims commissioner deems it just and equitable, he may authorize suit against the state on any claim which, in *281his opinion, presents an issue of law or fact under which the state, were it a private person, could be liable.” General Statutes § 4-160 (a).

In the present case, the plaintiff not only sought permission to bring suit against the state, he also sought damages8 before the claims commissioner. The filing of a claim for damages with the claims commissioner is no different than the filing of a complaint in a court of law for damages with respect to the “lawful demand of one’s right.” See Isaac v. Mount Sinai Hospital, 210 Conn. 721, 730, 557 A.2d 116 (1989). The only difference is that the former is quasi-judicial and the latter is judicial, a difference that should not affect the applicability of § 52-592. Accordingly, even under the majority’s narrow definition of action, the filing of a claim for damages before the quasi-judicial claims commissioner constitutes an action for the puiposes of § 52-592.

Although the record is uncertain as to what occurred between the plaintiff and the state during the four years the matter was pending before the claims commissioner, two facts are certain: the plaintiff filed a timely claim before the claims commissioner, and the state failed to move for dismissal before the claims commissioner until long after the statute of limitations had expired.9 This is precisely the unjust practice that § 52-592 was designed to remedy by taking the cutting edge off of the limitations period for bringing suit when it serves no purpose other than rewarding a defendant *282who was never misled and who, in fact, may have participated in misleading the plaintiff.

I respectfully dissent.

See footnote 2 of the majority opinion for the full text of § 52-592 (a).

In determining that a claim filed before the claims commissioner is not an action under § 52-592, the majority relies heavily on the use of the words “claim” and “action” in General Statutes § 4-160 and on the principle of statutory construction that “[t]he use of different terms within the same sentence of a statute plainly implies that differing meanings were intended.” Hinchliffe v. American Motors Corp., 184 Conn. 607, 613, 440 A.2d 810 (1981), aff'd, 192 Conn. 252, 470 A.2d 1216 (1984). I agree with this tenet of statutory construction and I would also go further by stating “that the use of different words in the same enactment must indicate a difference in legislative intention.” (Emphasis added.) Steadwell v. Warden, 186 Conn. 153, 164, 439 A.2d 1078 (1982). The majority, however, misses the point. These principles of statutory construction apply to the meaning of the words in a specific statute or enactment — in this case § 4-160 (c). It is not the interpretation of the word “action” for purposes of § 4-160 (c) that we must focus on, but, rather, on what the legislature intended “action” to mean in § 52-592. The same words may have a different import depending upon the context of the specific statute.

General Statutes § 4-151 provides: “Hearings, (a) Claims shall be heard, as soon as practicable after they are filed. Hearings may be held at the Office of the Claims Commissioner, at any available hearing facility in the state capitol or legislative office building, upon request at any courthouse serving a judicial district or geographical area or city or town hall in the state or at such other suitable place as the claims commissioner finds is convenient and just to the claimant and to the attorney general.

“(b) The claims commissioner may call witnesses, examine and cross-examine any witness, require information not offered by the claimant or the attorney general and stipulate matters to be argued. The claims commissioner shall not be bound by any law or rule of evidence, except as he may provide by his rules.

“(c) The claims commissioner may administer oaths, cause depositions to be taken, issue subpoenas and order inspection and disclosure of books, *280papers, records and documents. Upon good cause shown any such order or subpoena may be quashed by the claims commissioner.

“(d) If any person fails to respond to a subpoena, the claims commissioner may issue a capias, directed to the sheriff of the county in which such person resides, to arrest such person and bring him before the claims commissioner to testily.

“(e) If any person refuses to testify or to produce any relevant, unprivileged book, paper, record or document, the claims commissioner shall certify such fact to the attorney general, who shall apply to the superior court for the judicial district in which such person resides for an order compelling compliance. Further refusal of such person shall be punished as provided by section 2-46. If such person is the claimant, the claims commissioner shall summarily dismiss his claim and order it forfeited to the state.

“(f) When subpoenaed by the claims commissioner, witnesses shall be offered the fees and mileage allowances authorized by section 52-260, provided no such fee or allowance shall be paid to any state officer or employee who appears on behalf of the state.”

General Statutes § 4-157 provides: “Rules of procedure. The claims commissioner shall adopt regulations in accordance with the provisions of chapter 54, not inconsistent with the policy and provisions of this chapter, governing his proceedings. The regulations shall avoid formal and technical requirements, but shall provide a simple, uniform, expeditious and economical procedure for the presentation and disposition of claims.”

General Statutes § 4-154 provides: “Decision; finding of fact. Within ninety days after hearing a claim, the claims commissioner shall render his decision. He shall make a finding of fact for each claim and file such finding with his order or recommendation disposing of the claim. The clerk of the Office of the Claims Commissioner shall deliver a copy of such finding and order or recommendation to the claimant and to the representative for the state, which representative may in appropriate cases be the attorney general.”

General Statutes § 4-158 provides in pertinent part: “Jurisdiction of commissioner. Payment of claim. Report to assembly. Waiver of payment on protest to assembly, (a) The claims commissioner may approve immediate payment of just claims not exceeding seven thousand five hundred dollars. . . .”

General Statutes § 4-159 provides in pertinent part: “Recommendations for payments in excess of seven thousand five hundred dollars. Action by general assembly. After hearing, the claims commissioner shall make his *281recommendations to the general assembly for the payment or rejection of amounts exceeding seven thousand five hundred dollars. . .

See footnotes 6 and 7.

The majority, in footnote 9, implies that the record is silent as to when the state first brought to the attention of the claims commissioner the fact that he had no jurisdiction to act on the plaintiffs claim. This ignores the claims commissioner’s specific findings that the state failed to respond “for some years” and that there was no “action early on by the attorney general’s office” to dismiss the plaintiffs claim.