Larmel v. Metro North Commuter Railroad Co. ( 2022 )

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PHYLLIS LARMEL v. METRO NORTH
COMMUTER RAILROAD COMPANY
(SC 20535)
Robinson, C. J., and D’Auria, Mullins,
Kahn, Ecker and Keller, Js.
Syllabus
Pursuant to the accidental failure of suit statute (§ 52-592 (a)), ‘‘[i]f 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
otherwise avoided or defeated . . . for any matter of form . . . the
plaintiff . . . may commence a new action . . . for the same cause
at any time within one year after the determination of the original
action . . . .’’
Pursuant further to statute ((Rev. to 2017) § 52-549z), unless a demand for a
trial de novo is filed with the court within twenty days after an arbirator’s
decision in a civil arbitration has been mailed to counsel, that decision
shall become a judgment of the court.
The plaintiff sought to recover damages for personal injuries that resulted
after she slipped and fell while boarding a passenger railcar operated
by the defendant. The plaintiff had previously commenced a similar
action against the defendant, claiming that her injuries were caused by
a wet floor inside of the railcar and that the defendant negligently failed
to prevent her fall. Before the commencement of trial in the prior action,
the court ordered the parties to submit to civil arbitration pursuant to
statute (§ 52-549u). The arbitrator found in favor of the defendant, and
notice of the decision was issued. As a result of issues with the mail
and staffing issues at the law firm of the plaintiff’s counsel, the plaintiff’s
counsel did not become aware of the arbitration decision until twenty-
two days after the decision was mailed. Because neither party demanded
a trial de novo within twenty days of the mailing of the arbitrator’s
decision pursuant to § 52-549z, the trial court rendered judgment for
the defendant. The plaintiff then commenced the present action pursuant
to § 52-592 (a), claiming that her failure to demand a trial de novo in
the prior action was due to excusable neglect. The trial court granted
the defendant’s motion to dismiss on the basis of res judicata, and the
plaintiff appealed to the Appellate Court, which concluded that the
action was not viable under § 52-592 (a) because the first action was
tried on its merits by the arbitrator and had resulted in a judgment in
favor of the defendant. Accordingly, the Appellate Court reversed the
trial court’s judgment dismissing the action and remanded the case with
direction to render judgment for the defendant. On the granting of
certification, the plaintiff appealed to this court. Held that the plaintiff’s
action could not be saved by § 52-592 (a) because her prior action was
tried on the merits, and, accordingly, the judgment of the Appellate
Court was affirmed: an arbitration pursuant to § 52-549u is a quasi-
judicial examination of the parties’ claims, the parties submitted evi-
dence to the arbitrator, who was empowered to receive evidence and
to find facts, and the arbitrator examined that evidence and rendered
a decision on the merits; moreover, allowing a new action to be com-
menced under § 52-592 (a) in a case such as the present one would
undermine the finality mandated by § 52-549z, and a more expansive
reading of the phrase ‘‘tried on its merits’’ in § 52-592 (a) that incorpo-
rates forms of summary adjudication, other than a formal trial, that turn
on the merits of the particular claims presented produced a result more
harmonious with existing case law; furthermore, the plaintiff’s reliance
on the remedial nature of § 52-592 was unavailing, as the nature of the
arbitration proceeding itself and the statutory requirement in § 52-549z
that an arbitrator’s decision shall become a judgment of the court if no
demand for a trial de novo is filed within twenty days of the mailing of
that decision to counsel indicated that the present case was considered
on its merits, and requiring adherence to the judgment that followed
worked neither a surprise nor an injustice on the plaintiff.
(Two justices dissenting in one opinion)
Argued May 6—officially released November 15, 2021*
Procedural History
Action to recover damages for personal injuries sus-
tained as a result of the defendant’s alleged negligence,
and for other relief, brought to the Superior Court in
the judicial district of New Haven, where the court, S.
Richards, J., granted the defendant’s motion to dismiss
and rendered judgment thereon, from which the plain-
tiff appealed to the Appellate Court, Lavine and Pres-
cott, Js., with Eveleigh, J., dissenting, which reversed
the trial court’s judgment and remanded the case with
direction to render judgment for the defendant, and
the plaintiff, on the granting of certification, appealed.
Affirmed.
James P. Brennan, for the appellant (plaintiff).
Beck S. Fineman, with whom, on the brief, was Jenna
T. Cutler, for the appellee (defendant).
Opinion
KAHN, J. This certified appeal requires us to consider
whether a case that results in a judgment of the trial
court in favor of the defendant following a plaintiff’s
failure to demand a trial de novo after an arbitration
proceeding pursuant to General Statutes (Rev. to 2017)
§ 52-549z1 has been ‘‘tried on its merits,’’ thus barring
a subsequent action under the accidental failure of suit
statute, General Statutes § 52-592 (a). The Appellate
Court’s decision in the present case answered this ques-
tion in the affirmative, and, as a result, that court
remanded the case to the trial court with direction to
render judgment in favor of the defendant, Metro North
Commuter Railroad Company, on a claim of negligence
brought by the plaintiff, Phyllis Larmel, that had pre-
viously been the subject of mandatory arbitration in a
prior civil action. Larmel v. Metro North Commuter
Railroad Co., 200 Conn. App. 660, 661–62, 240 A.3d 1056(2020). In the present appeal, the plaintiff claims that
her first action was never ‘‘tried on its merits’’ because
there was no formal trial in the first action and that,
as a result, the Appellate Court’s conclusion was in
error. We disagree and, accordingly, affirm the judg-
ment of the Appellate Court.
The following undisputed facts and procedural his-
tory are relevant to the present appeal. On October 1,
2014, the plaintiff was injured when she slipped and
fell while boarding a passenger railcar at Union Station
in New Haven. In 2015, the plaintiff commenced a per-
sonal injury action alleging that her injuries were caused
by a wet floor inside of the railcar and that the defendant
negligently failed to prevent her fall. After the close of
pleadings in that case, but before the commencement
of trial, the court ordered the parties to arbitration
pursuant to General Statutes § 52-549u.2
The arbitration took place on December 1, 2017, and
the arbitrator, Attorney David J. Crotta, Jr., issued his
decision on February 26, 2018. In that decision, the
arbitrator made various factual findings ‘‘[o]n the basis
of the credible evidence’’ submitted by the parties,
including the plaintiff’s deposition transcript, medical
records, medical bills, and a report filed by a medical
expert for the defendant. The arbitrator noted that the
plaintiff’s credibility was circumspect because of vari-
ous factual inconsistencies in her accounts of the event,
and that a defective condition may have never even
existed in the first instance because the plaintiff’s fall
could have been caused by ‘‘water on the bottom of
[her] own shoes . . . .’’ Ultimately, the arbitrator found
in favor of the defendant, concluding that ‘‘the plaintiff
has failed to meet her burden of proof by a preponder-
ance of the evidence . . . .’’
Notice of the arbitrator’s decision was mailed to the
parties’ counsel on February 27, 2018, as evidenced by
a postmark, but did not arrive at the office of the plain-
tiff’s counsel until March 13, 2018. The plaintiff’s coun-
sel was on vacation at that time, and did not return to
his office until March 19, 2018. As a result of certain
staffing issues at the firm, another two days passed
before the plaintiff’s counsel became aware of the arbi-
trator’s decision. By that point, twenty-two days had
passed since the arbitrator’s decision was mailed.3
Because neither party demanded a trial de novo pur-
suant to § 52-549z within twenty days of the February
27, 2018 mailing of the arbitrator’s decision, the trial
court rendered judgment in favor of the defendant in
accordance with the arbitrator’s decision on March 21,
2018. The plaintiff then filed a motion to open the judg-
ment on March 23, 2018, which was denied by the court
on August 27, 2018, following oral argument. The plain-
tiff neither appealed from the trial court’s denial of her
motion to open nor sought an articulation of the court’s
decision.
The plaintiff then commenced the present action in
October, 2018, pursuant to the accidental failure of suit
statute, § 52-592 (a).4 The complaint in this action
repeated the allegations of negligence in the first action
and further alleged that her failure to demand a trial
de novo in the first action was due to excusable neglect.
The trial court in the present case granted the defen-
dant’s motion to dismiss on the basis of res judicata,
and the plaintiff subsequently appealed to the Appel-
late Court.
The Appellate Court disagreed with the trial court’s
conclusion that the doctrine of res judicata required
dismissal5 but nonetheless concluded that the action
was not viable under § 52-592 (a) because the first
action had been ‘‘tried on its merits’’ by the arbitrator
and had resulted in a judgment of the court in favor
of the defendant. Larmel v. Metro North Commuter
Railroad Co., supra, 200 Conn. App. 666–67, 673. In
its decision, the Appellate Court concluded that ‘‘[t]he
judgment in the first action was rendered on the arbitra-
tor’s decision as a matter of law and, therefore, the
plaintiff may not take advantage of § 52-592 because
she has not met the factual predicate that the first action
was not tried on its merits.’’ Id., 671. On the basis of
this reasoning, the Appellate Court reversed the trial
court’s judgment dismissing the action and remanded
the case with direction to render judgment in favor of
the defendant. Id., 661, 679.
Writing in dissent, Justice Eveleigh disagreed with
the majority’s conclusion that the plaintiff’s first action
was tried on its merits for purposes of § 52-592 (a).
Id., 679. According to Justice Eveleigh, the majority
incorrectly concluded that the phrase ‘‘tried on its mer-
its’’ could be satisfied by an adjudication of a claim by
an arbitrator, rather than by a more formal judicial
proceeding. Id., 683–84 (Eveleigh, J., dissenting). Citing
Nunno v. Wixner, 257 Conn. 671, 680–81, 778 A.2d 145(2001), Justice Eveleigh argued that arbitration pro-
ceedings have ‘‘procedural deficiencies’’ that make
them inadequate to be considered ‘‘trials,’’ such as a
lack of live testimony, cross-examination, and objection
to evidence. Id., 682 (Eveleigh, J., dissenting). As a
result of those deficiencies, Justice Eveleigh concluded
that cases sent to arbitration under § 52-549u are not
‘‘tried on [their] merits’’ for purposes of § 52-592 (a)
and, therefore, that the present action should be
remanded to the trial court for a determination of
whether the plaintiff’s failure to demand a trial de novo
within twenty days of the arbitration decision caused
the first action to fail as a ‘‘matter of form.’’ Id., 679–84,
87 (Eveleigh, J., dissenting). This certified appeal fol-
lowed.6
In the present appeal, the plaintiff renews her con-
tention that her second action may be saved by § 52-
592 (a) because her first action was not ‘‘tried on its
merits . . . .’’ The plaintiff argues that the Appellate
Court’s conclusion to the contrary was incorrect and
that the case must be remanded to the trial court to
decide whether her failure to demand a trial de novo
in the first action was the result of mistake, inadver-
tence, or excusable neglect, and was, thus, a matter
of form, allowing the plaintiff to utilize the accidental
failure of suit statute to bring the same claim in a second
lawsuit. Specifically, the plaintiff argues that the phrase
‘‘tried on its merits’’ means a formal trial and cannot be
fulfilled by a judgment of the court following mandatory
arbitration under § 52-549u. In response, the defendant
argues that the Appellate Court properly interpreted
the phrase ‘‘tried on its merits’’ to include a proceeding
resolved in such a manner.
Because our resolution of this action involves a ques-
tion of statutory construction, our review is plenary.
See, e.g., Desrosiers v. Diageo North America, Inc., 314
Conn. 773, 782, 105 A.3d 103 (2014). ‘‘When presented
with a question of statutory construction, [o]ur funda-
mental objective is to ascertain and give effect to the
apparent intent of the legislature. . . . The meaning of
a statute shall, in the first instance, be ascertained from
the text of the statute itself and its relationship to other
statutes. If, after examining such text and considering
such relationship, the meaning of such text is plain and
unambiguous and does not yield absurd or unworkable
results, extratextual evidence of the meaning of the
statute shall not be considered.’’ (Citation omitted;
internal quotation marks omitted.) Id.; see also General
Statutes § 1-2z.
We begin our analysis with the language of the acci-
dental failure of suit statute. Section 52-592 (a) provides
in relevant part: ‘‘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
otherwise avoided or defeated . . . for any matter of
form . . . the plaintiff . . . may commence a new
action . . . for the same cause at any time within one
year after the determination of the original action
. . . .’’ (Emphasis added.) A plaintiff may obtain relief
under this provision only if the original action has
‘‘failed one or more times to be tried on its merits
. . . .’’ General Statutes § 52-592 (a). For the reasons
that follow, we conclude that a judgment of the trial
court rendered following arbitration pursuant to § 52-
549u has been ‘‘tried on its merits’’ within the meaning
of the accidental failure of suit statute.
To understand the phrase ‘‘tried on its merits’’ as
used in § 52-592 (a), we must first review the definition
of the term ‘‘tried.’’ See, e.g., State v. Webster, 308 Conn.
43, 53, 60 A.3d 259 (2013). Because the term ‘‘tried’’ is
not defined within the statutory scheme, we may ‘‘look
to the common understanding of the term as expressed
in a dictionary.’’ (Internal quotation marks omitted.) Id.Modern dictionaries indicate that the word ‘‘[t]ried’’ is
the past tense of the verb ‘‘try,’’ which means, inter alia,
‘‘to examine or investigate judicially . . . .’’ Merriam-
Webster’s Collegiate Dictionary (11th Ed. 2014) p. 1344.
Dictionaries dating back to the first use of the phrase
‘‘tried on its merits’’ in the 1918 revision of the General
Statutes have consistently defined the word ‘‘try’’ in a
broad manner. See Black’s Law Dictionary (2d Ed. 1910)
p. 1178 (defining ‘‘try’’ as verb meaning ‘‘[t]o examine
judicially’’); Webster’s Revised Unabridged Dictionary
of the English Language (1913) p. 2210 (defining ‘‘try’’
as ‘‘[t]o examine or investigate judicially; to examine
by witnesses or other judicial evidence and the princi-
ples of law’’); see also Nixon v. United States, 506 U.S.
224, 229–30, 113 S. Ct. 732, 122 L. Ed. 2d 1 (1993) (noting
that word ‘‘try’’ has been defined broadly).
An arbitration proceeding pursuant to § 52-549u is,
undoubtedly, a quasi-judicial examination of the parties’
claims, as arbitrators are statutorily authorized to carry
out functions that are judicial in nature. Indeed, the trial
court may refer any civil action in which the reasonable
expectation of the judgment is expected to be less than
$50,000, to an arbitrator. General Statutes § 52-549u.
‘‘Such arbitrators shall have the power to: (1) Issue
subpoenas for the attendance of witnesses and for the
production of books, papers and other evidence, such
subpoenas to be served in the manner provided by law
for service of subpoenas in a civil action and to be
returnable to the arbitrators; (2) administer oaths or
affirmations; and (3) determine the admissibility of evi-
dence and the form in which it is to be offered.’’ General
Statutes § 52-549w (c). The parties in this case submit-
ted various pieces of evidence to the arbitrator for con-
sideration. Although the parties chose not to offer wit-
nesses or to object to evidence, the plaintiff does not
dispute that she had the opportunity to do both.
Upon completion of the arbitration hearing, the arbi-
trator must submit a decision in writing within 120 days.
General Statutes § 52-549x; cf. General Statutes § 51-
183b. Thereafter, § 52-549z provides either party with
an unqualified right to demand a trial de novo before
the trial court. ‘‘If neither party requests a trial de novo
within twenty days, the decision of the arbitrator
becomes the judgment of the court.’’ (Emphasis added.)
Nunno v. Wixner, supra, 257 Conn. 679. Because neither
party made such a demand in the present case, the
arbitrator’s decision, in fact, became a judgment of the
trial court on the merits in favor of the defendant.
Even in the absence of a demand for a trial de novo,
the trial court possesses independent authority to
review and, if necessary, set aside the arbitrator’s deci-
sion. See General Statutes § 52-549aa (‘‘[i]n addition to
the absolute right to a trial de novo . . . the court . . .
may set aside an award of arbitrators and order a trial
de novo in the Superior Court upon proof that the arbi-
trators acted arbitrarily or capriciously’’). This degree
of judicial oversight suggests that the trial court’s
involvement is more than ‘‘ministerial,’’ as the plaintiff
suggests.
In sum, the foregoing demonstrates that the plaintiff’s
claim against the defendant was presented to a neutral
fact finder who was empowered by statute both to
receive evidence and to find facts. That arbitrator exam-
ined what had been submitted to him and ultimately
rendered a decision against the plaintiff on the merits.
Notwithstanding its authority under § 52-549aa, the trial
court subsequently adopted that decision as its own
after the parties failed to object to it. Because this
statutory process turned on the merits of the claims
raised in the present case, § 52-592 (a) does not permit
the plaintiff to circumvent the judgment of the trial
court that was rendered as a result of it.7
Reaching a contrary conclusion would undermine the
purpose of the twenty day deadline set forth in § 52-
549z (d). If we were to accept the plaintiff’s argument,
a defendant that has obtained a judgment of the court
in its favor following arbitration on the merits under
§ 52-549u would have no way of knowing whether the
plaintiff’s failure to demand a trial de novo within that
period of time was the result of excusable neglect and,
thus, no way of knowing whether it could rely on the
court’s judgment. Allowing new actions to be com-
menced under the accidental failure of suit statute in
such a case would undermine the finality so clearly
mandated by § 52-549z. See Coldwell Banker Manning
Realty, Inc. v. Cushman & Wakefield of Connecticut,
Inc., 293 Conn. 582, 594, 980 A.2d 819 (2009) (‘‘[t]he
principal characteristic of an arbitration award is its
finality as to the matters submitted so that the rights
and obligations of the parties may be definitely fixed’’
(internal quotation marks omitted)); cf. Carbone v. Zon-
ing Board of Appeals, 126 Conn. 602, 607, 13 A.2d 462(1940) (‘‘Statutes and special laws such as the one
before us fixing a rather brief time in which appeals may
be taken to the courts from the orders and decisions
of administrative boards are evidently designed to
secure in the public interest a speedy determination of
the issues involved; and to make it possible to proceed
in the matter as soon as the time to take an appeal has
passed if one has not been filed. To hold that an appeal
in such a proceeding as the one before us is an ‘action’
within the meaning of [the accidental failure of suit
statute], would have the practical effect of eliminating
the time factor in taking such appeals.’’); Bank Build-
ing & Equipment Corp. of America v. Architectural
Examining Board, 153 Conn. 121, 124–25, 214 A.2d
377 (1965) (citing Carbone and concluding that ‘‘[t]he
obvious legislative purpose of securing a prompt deter-
mination of the issues in an appeal from the orders of
the defendant board . . . could be nullified . . . by a
resort to . . . § 52-592’’); Metcalfe v. Sandford, 271
Conn. 531, 537, 858 A.2d 757 (2004) (‘‘The reasoning
adopted by this court in Carbone and endorsed in Bank
Building & Equipment Corp., applies with equal force
to appeals from probate. As with appeals from adminis-
trative agencies, the legislature has provided for prompt
resolution of issues and finality in decisions by estab-
lishing a relatively short time limit within which an
appeal from probate may be taken. . . . This time limit
provides for the prompt settlement and administration
of estates by giving interested parties confidence in the
status of the estate within a reasonable time period.’’
(Citation omitted; footnote omitted.)).
Furthermore, 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). A more expansive reading of the phrase
that incorporates other forms of summary adjudication
that turn on the merits of the particular claims pre-
sented produces a result more harmonious with existing
case law. See Boone v. William W. Backus Hospital,
102 Conn. App. 305, 315, 925 A.2d 432 (accidental failure
of suit statute was inapplicable because merits of plain-
tiff’s claims had already been decided ‘‘through the
[trial] court’s rendering of summary judgment’’), cert.
denied, 284 Conn. 906, 931 A.2d 261 (2007); see also
Hughes v. Bemer, 206 Conn. 491, 492–93, 538 A.2d 703(1988) (trial court’s judgment in favor of defendant
resulting from plaintiff’s failure to plead over following
grant of motion to strike was considered on merits for
purposes of § 52-592); Carr v. Century 21 Real Estate,
Superior Court, judicial district of Fairfield, Docket No.
CV-31-84-16 (March 31, 1995) (‘‘[T]he [accidental failure
of suit] statute cannot be used when there has been a
valid judgment on the merits after [a] full and fair hear-
ing. . . . [The trial court rendered] summary judgment
in favor of [the defendant] in the original action. Such
a judgment constitutes a judgment on the merits.’’ (Cita-
tions omitted.)); cf. Holt v. KMI-Continental, Inc., 95
F.3d 123, 131 (2d Cir. 1996) (Connecticut’s accidental
failure of suit statute ‘‘only applies if the original claim
was dismissed for procedural reasons and not on the
merits’’), cert. denied, 520 U.S. 1228, 117 S. Ct. 1819,
137 L. Ed. 2d 1027 (1997).
The plaintiff’s reliance on the remedial nature of § 52-
592 is also unavailing. It is well established that the
purpose of § 52-592 (a) is ‘‘to bring about a trial on the
merits of a dispute whenever possible and to secure
for the litigant his [or her] day in court. . . . The design
of the rules of practice is both to facilitate business
and to advance justice; they will be interpreted liberally
in any case [in which] it shall be manifest that a strict
adherence to them will work surprise or injustice. . . .
Our practice does not favor the termination of proceed-
ings without a determination of the merits of the contro-
versy where that can be brought about with due regard
to necessary rules of procedure.’’ (Internal quotation
marks omitted.) Rocco v. Garrison, 268 Conn. 541, 558,
848 A.2d 352 (2004). As we discussed previously in this
opinion, the nature of the arbitration proceeding itself
and the statutory requirement that ‘‘[a] decision of the
arbitrator shall become a judgment of the court if no
appeal from the arbitrator’s decision by way of a
demand for a trial de novo is filed’’ all indicate that the
present case has, in fact, been considered on its merits.
General Statutes § 52-549z (a). The arbitrator made a
finding based on the evidence presented by the parties
and clearly articulated the reasons for his findings. The
trial court then adopted that decision as its own. Requir-
ing adherence to the judgment that followed works
neither a surprise nor an injustice on the plaintiff. As
such, the policy considerations behind § 52-592 (a) do
not bolster the plaintiff’s position.8
Finally, because we find its facts distinguishable from
the present case, we respectfully disagree with Justice
Eveleigh’s conclusion that the issue presented in this
appeal is controlled by Nunno v. Wixner, supra, 257
Conn. 671. In Nunno, this court considered whether
the offer of compromise statute, General Statutes § 52-
192a, applies to a judgment rendered after a mandatory
arbitration proceeding pursuant to § 52-549u. Id., 673–
74. Section 52-192a indicates that offer of compromise
interest is only available ‘‘[a]fter trial,’’ and, accordingly,
this court was called on to consider whether a manda-
tory arbitration pursuant to § 52-549u constituted a
‘‘trial’’ for that limited purpose. Nunno v. Wixner, supra,
676–77. Although we concluded that arbitration pursu-
ant to § 52-549u is not a ‘‘trial’’ for purposes of the offer
of compromise statute; id., 677; for the reasons that
follow, we do not believe that our holding in that case
requires us to apply the same narrow reading of the term
‘‘trial’’ in § 52-192a to the phrase ‘‘tried on its merits’’
in § 52-592 (a).
First, the statute at issue in Nunno, the offer of com-
promise statute, is textually distinguishable from the
accidental failure of suit statute. The phrase ‘‘[a]fter
trial’’ in § 52-192a is different from the phrase ‘‘tried on
its merits’’ in § 52-592 (a). Although the word ‘‘trial’’ is
most often understood as a formal trial before a judicial
body, the word ‘‘tried’’ has frequently been used in refer-
ence to alternative dispute resolutions outside of a for-
mal trial, including arbitration proceedings. See, e.g.,
Demsey & Associates, Inc. v. S. S. Sea Star, 461 F.2d
1009, 1017 (2d Cir. 1972) (‘‘[third-party defendant
claimed it] was entitled to have certain issues tried by
arbitration’’ (emphasis added)); Bean v. Farnam, 23
Mass. (6 Pick.) 268, 275 (1828) (‘‘[t]he plea . . . in the
present case does not require us to try over again a
matter already tried by the arbitrators’’ (emphasis
added)); cf. Paulus v. LaSala, 56 Conn. App. 139, 140,
742 A.2d 379 (1999) (‘‘[a]n attorney trial referee tried
the case’’ (emphasis added)), cert. denied, 252 Conn.
928, 746 A.2d 789 (2000); Spearhead Construction Corp.
v. Bianco, 39 Conn. App. 122, 127, 665 A.2d 86 (‘‘[t]his
case was tried before an attorney trial referee’’ (empha-
sis added)), cert. denied, 253 Conn. 928, 667 A.2d 554(1995).
In addition, the phrase ‘‘[a]fter trial’’ in § 52-192a and
the phrase ‘‘tried on its merits’’ in § 52-592 (a) can also
be distinguished by the other language used in those
statutes. Section 52-192a contains several references to
‘‘a verdict by the jury or an award by the court’’ that
will be considered ‘‘[a]fter trial . . . .’’ These refer-
ences make it plain that the legislature intended for the
term ‘‘trial’’ in § 52-192a to refer to a formal trial held
before a judge. The relevant portions of § 52-592 (a),
on the other hand, neither mention jury verdicts or
court awards nor contain any other language that would
indicate the legislature’s intention to restrict the phrase
‘‘tried on its merits’’ to proceedings conducted exclu-
sively before a judge. Rather, the statute contemplates
a remedy for actions that have failed to be heard on their
merits. There can be no dispute that the arbitrator’s
decision, which was later adopted by the trial court
itself, resolved the present case on its merits. Indeed,
the plaintiff does not contend otherwise.
Unlike in Nunno,9 a reading of the phrase ‘‘tried on
[the] merits’’ as requiring less than a formal trial is not
inconsistent with the underlying purpose of § 52-592
(a). The purpose of § 52-592 (a) is ‘‘to avoid hardships
arising from an unbending enforcement of limitation
statutes’’; Issac v. Mount Sinai Hospital, 210 Conn.
721, 728, 557 A.2d 116 (1989); and ‘‘to bring about a
trial on the merits of a dispute whenever possible and
to secure for the litigant his day in court.’’ (Internal
quotation marks omitted.) Rocco v. Garrison, supra,
268 Conn. 558. In other words, rather than trying to
conserve judicial resources, the accidental failure of
suit statute ensures that, under certain circumstances,
litigants retain their right to have their disputes resolved
on the merits. The right to have disputes resolved on
the merits is not exclusive to a formal court or jury
trial. For the reasons discussed previously, it is clear
that the parties in the present case have had an opportu-
nity to have their dispute resolved on the merits.
For the foregoing reasons, we conclude that the plain-
tiff’s first case was ‘‘tried on its merits’’ within the mean-
ing of § 52-592 (a) and that, as a result, the Appellate
Court properly remanded the present case to the trial
court with direction to render judgment in favor of the
defendant.
The judgment of the Appellate Court is affirmed.
In this opinion D’AURIA, MULLINS and KELLER, Js.
concurred.
* November 15, 2021, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
General Statutes (Rev. to 2017) § 52-549z provides in relevant part: ‘‘(a)
A decision of the arbitrator shall become a judgment of the court if no
appeal from the arbitrator’s decision by way of a demand for a trial de novo
is filed in accordance with subsection (d) of this section.
‘‘(b) A decision of the arbitrator shall become null and void if an appeal
from the arbitrator’s decision by way of a demand for a trial de novo is
filed in accordance with subsection (d) of this section.
***
‘‘(d) An appeal by way of a demand for a trial de novo must be filed
with the court clerk within twenty days after the deposit of the arbitrator’s
decision in the United States mail, as evidenced by the postmark, and it
shall include a certification that a copy thereof has been served on each
counsel of record, to be accomplished in accordance with the rules of court.
The decision of the arbitrator shall not be admissible in any proceeding
resulting after a claim for a trial de novo or from a setting aside of an award
in accordance with section 52-549aa. . . .’’ (Emphasis added.)
We note that, after the events underlying the present appeal, the legislature
amended § 52-549z (d) to allow a demand for a trial de novo following the
receipt of an electronic notice. See Public Acts 2019, No. 19-64, § 23. All
references to § 52-549z in this opinion are to the 2017 revision of the Gen-
eral Statutes.
2
General Statutes § 52-549u provides in relevant part: ‘‘[T]he judges of
the Superior Court may make such rules as they deem necessary to provide
a procedure in accordance with which the court, in its discretion, may refer
to an arbitrator, for proceedings authorized pursuant to this chapter, any
civil action in which in the discretion of the court, the reasonable expectation
of a judgment is less than fifty thousand dollars exclusive of legal interest
and costs and in which a claim for a trial by jury and a certificate of closed
pleadings have been filed. An award under this section shall not exceed
fifty thousand dollars, exclusive of legal interest and costs. . . .’’
3
The facts relating to the events following the arbitrator’s decision in the
prior action are taken from the allegations contained in the complaint in
the present case. The defendant does not appear to contest the accuracy
of these allegations.
4
General Statutes § 52-592 (a) provides in relevant part: ‘‘If any action,
commenced within the time limited by law, has failed one or more times
to be tried on its merits because of insufficient service or return of the
writ due to unavoidable accident or the default or neglect of the officer to
whom it was committed, or because the action has been dismissed for want
of jurisdiction, or the action has been otherwise avoided or defeated by the
death of a party or for any matter of form; or if, in any such action after a
verdict for the plaintiff, the judgment has been set aside, or if a judgment
of nonsuit has been rendered or a judgment for the plaintiff reversed, the
plaintiff . . . may commence a new action . . . for the same cause at any
time within one year after the determination of the original action or after
the reversal of the judgment.’’ (Emphasis added.)
5
We note that the Appellate Court’s analysis of res judicata is not at issue
in this certified appeal. See footnote 6 of this opinion.
6
This court granted the plaintiff’s petition for certification to appeal,
limited to the following issues: (1) ‘‘Did the Appellate Court correctly con-
clude that a judgment rendered after mandatory arbitration pursuant to
. . . § 52-549u is a ‘trial on the merits’ that bars a plaintiff from subsequently
utilizing . . . § 52-592?’’ And (2) ‘‘[w]as the plaintiff’s failure to request a
trial de novo pursuant to . . . § 52-549z, following entry of the arbitrator’s
decision under § 52-549u, a ‘matter of form,’ as contemplated by § 52-592?’’
Larmel v. Metro North Commuter Railroad Co., 335 Conn. 972, 240 A.3d
676 (2020). Because we answer the first question in the affirmative, we need
not address the second.
7
In reaching this conclusion, we emphasize that the existence of a judg-
ment itself is not determinative of whether the accidental failure of suit
statute applies. The question of whether a particular case has been ‘‘tried
on its merits’’ within the meaning of § 52-592 (a), rather, turns on the basis
of the judgment ultimately rendered. When, as in this case, the judgment
rendered was based on an assessment of the underlying merits of the claims,
the accidental failure of suit statute will not operate to revive those claims.
See, e.g., Hughes v. Bemer, 206 Conn. 491, 492–93, 538 A.2d 703 (1988)
(accidental failure of suit statute did not apply to claims that were disposed
on merits pursuant to grant of motion to strike).
8
We note that reaching the opposite conclusion would mean that a plaintiff
who inadvertently misses the deadline for requesting a trial de novo could
have recourse under the accidental failure of suit statute, whereas a similarly
situated defendant would not. This would mean that the deadline created
by § 52-549z, which nominally applies to both parties, would be fatal only
to defendants. It is difficult to believe that such an inequitable result would
have been intended by our legislature.
9
One of the arguments that informed our construction of the phrase
‘‘[a]fter trial’’ in Nunno was that the imposition of interest on a defendant
would discourage the voluntary acceptance of arbitration awards. (Internal
quotation marks omitted.) Nunno v. Wixner, supra, 257 Conn. 677, 684–85.
That same tension is not at issue in the present case.