PAUL M. CAPERS, ADMINISTRATOR (ESTATE OF DONNIE J. CAPERS) v. WARREN J. LEE ET AL., 239 Conn. 265

KATZ, J. The sole issue on appeal is whether the plaintiffs notice of claim filed with the office of the claims commissioner of the state of Connecticut (claims commissioner), pursuant to General Statutes § 4-147, constitutes an “action” under General Statutes § 52-592 so as to save the present wrongful death action, which was commenced more than four years after the alleged incident, from being time barred. We conclude that it does not. The following facts are undisputed. On February 21, 1995, the plaintiff, Paul M. Capers, administrator of the estate of Donnie J.

Capers, filed this complaint in the Superior Court in the judicial district of Hartford-New Britain at Hartford, alleging that on or about June 1, 1990, the plaintiffs decedent had been struck and killed by a motor vehicle owned by the defendant state and used by the department of public safety, the division of the state police, as a police cruiser. According to the plaintiffs allegations, the vehicle, operated in a negligent and careless manner by the defendant Warren J.

Lee, while acting in his capacity as an agent, servant or employee of the state police, was insured by the state against personal injury and property damage through a policy maintained by Aetna Life and Casualty Company. The plaintiff alleged that as a consequence of Lee’s negligent and careless driving, the plaintiffs decedent sustained multiple fractures and massive internal injuries, the combination of which resulted in his death.

The plaintiff further alleged that, believing it was necessary in accordance with § 4-147, he had filed a notice of claim with the office of the claims commissioner on or about October 18, 1990, seeking money damages and authorization to initiate an action against the state for Lee’s negligence.

Thereafter, on December 16, 1994, the claims commissioner granted the defendants’ motion to dismiss the claim, concluding that, because General Statutes § 52-556 authorized the plaintiff to bring a direct action in the Superior Court against the defendants, General Statutes § 4-142 (2) deprived the claims commissioner of the authority to decide the claim. Accordingly, the claims commissioner dismissed the claim.

On the basis of the dismissal of his claim for want of jurisdiction, the plaintiff brought the present action, specifically invoking the authority of § 52-592, the accidental failure of suit statute, which permits, inter alia, the filing of a new action within one year of the dismissal of the original action for want of jurisdiction. On May 10, 1995, the defendants moved to dismiss the present action because it had been brought more than four years after the accident in issue.

The defendants argued, inter alia, that § 52-592 did not apply because a notice of claim to the claims commissioner is not an “action” within the meaning of that statute. The plaintiff responded that by his notice of claim against the defendant he had commenced suit, thereby falling within the purview of § 52-592. The trial court agreed with the defendants that the plaintiff had not satisfied the requirements of, and therefore could not take advantage of, § 52-592, and dismissed the plaintiffs action as untimely.

The plaintiff appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We affirm the judgment of the trial court. The issue before the court is whether the plaintiff has satisfied the requirements of the accidental failure of suit statute so as to be covered by its umbrella. Isaac v. Mount Sinai Hospital, 210 Conn. 721, 728-29, 557 A.2d 116 (1989).

We focus our attention on the one relevant criterion in dispute: whether the plaintiffs “notice of claim” with the claims commissioner was an “action” within the meaning of § 52-592. We begin with the pertinent provision at issue.

Section 52-592 (

a) provides: “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, or the action has been otherwise avoided or defeated ... for any matter of form . . . the plaintiff, or, if the plaintiff is dead and the action by law survives, his executor or administrator, 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.” As we have stated, “[t]he provision is remedial in its character.

It was passed to avoid hardships arising from an unbending enforcement of limitation statutes.” Isaac v. Mount Sinai Hospital, supra, 728. As we have also stated, however, “the extension of time [in § 52-592 is] in terms made applicable to all cases where a ‘suit’ seasonably begun [has] failed for the causes stated . . . .” (Emphasis added.) Id., 729-30. Therefore, § 52-592 applies only when there has been an original action that had been commenced in a timely fashion.

Although the term action is not defined within the terms of § 52-592, we have generally defined the term as “the lawful demand of one’s right in a court of justice-, and in this sense it may be said to include any proceeding in such a court for the purpose of obtaining such redress as the law provides.” (Emphasis added; internal quotation marks omitted.) Id., 730. By contrast, claim is defined as a “petition for the payment or refund of money by the state or for permission to sue the state.” General Statutes § 4-141. When the exceptions of § 4-142 do not apply, General Statutes § 4-160 (

a) makes it clear that a claimant can only institute an action against the state in a court of justice once the claims commissioner hears the claim; General Statutes § 4-151; causes a record to be made of such claim; General Statutes § 4-153; and authorizes the claimant to sue the state, or suit is permitted by the General Assembly. General Statutes § 4-159. Therefore, a claimant falling outside the exceptions of § 4-142 must bring a claim before commencing an action.

That claim is not a demand, a suit or an action in a court of justice but, rather, is a petition seeking permission to proceed with an action against the state in a court of justice. Furthermore, in an action authorized by the legislature or the claims commissioner, the claimant must allege when authorization to sue was granted; General Statutes § 4-160 (b); because that date triggers the time frame within which the action must be brought.

Section 4-160 (

c) provides in relevant part: “No such action shall be brought but within one year from the date such authorization to sue is granted.

With respect to any claim pending before the claims commissioner on October 1,1992, or presented to the claims commissioner on or after said date 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. . . .” (Emphasis added.) The use of the word claim in conjunction with the word action in the same subsection of the statute suggests that the legislature “acted with complete awareness of their different meanings”; Hartford Principals & Supervisors’ Assn. v.

Shedd, 202 Conn. 492, 506, 522 A.2d 264 (1987); and that it intended the terms to have different meanings. Hinchliffe v. American Motors Corp., 184 Conn. 607, 613, 440 A.2d 810 (1981) (use of different terms within same sentence of statute “plainly” implies differing meanings intended), aff'd, 192 Conn. 252, 470 A.2d 1216 (1984); see also Plourde v. Liburdi, 207 Conn. 412, 416, 540 A.2d 1054 (1988). Accordingly, we conclude that the terms claim as set forth in § 4-141 and action as contained within § 52-592 have different meanings.

The plaintiff argues, nonetheless, that because the filing of the claim is the necessary first step before a claimant can bring an action against the state, the claims process is “integral to the filing of suit and can only be so understood as an ‘action’ against the state . . . .” We disagree. Because there was an express waiver of sovereign immunity; see General Statutes § 52-556; the plaintiff was not required to present his claim to the claims commissioner either for payment or authorization to sue the state.

Clearly, had the plaintiffs claim not been “authorized by law,” or otherwise excepted by § 4-142, he would have been required to file the notice of claim for there to be a waiver of the state’s sovereign immunity. Duguay v. Hopkins, 191 Conn. 222, 232, 464 A.2d 45 (1983). Under those circumstances, however, that notice of claim still would not constitute an action.

When, after applying the governing criteria, either the claims commissioner or the General Assembly grants the claimant permission to bring an action against the state, pursuant to §§ 4-159 or 4-160 (a), the claimant cannot merely rely on the earlier filed notice. Rather, the empowered claimant must commence a separate action in the Superior Court using civil process. See General Statutes § 4-160 (d).

Without question, the notice of claim does not satisfy the requirements of General Statutes § 52-45a (“Civil actions shall be commenced by legal process consisting of a writ of summons or attachment, describing the parties, the court to which it is returnable, the return day and the date and place for the filing of an appearance. The writ shall be accompanied by the plaintiffs complaint.”). Furthermore, the legislature has provided a specific road map for claimants whose claims properly belong before the claims commissioner.

As stated above, the claimant in his complaint must allege the authorization and the date on which it was provided. General Statutes § 4-160 (b). Regarding claims for which authorization to sue has been granted by October 1, 1992, claimants have one year from the date of authorization to bring an action; with respect to claims pending on October 1, 1992, and to claims presented on or after that date, any statute of limitations applicable to such action is tolled until the date authorization is granted. General Statutes § 4-160 (c).

Moreover, claimants will not be foreclosed from subsequently bringing a separate civil action when one is authorized, even when the claims commissioner fails to act in a timely fashion. Consequently, there is no compelling reason to construe the word action in § 52-592 to include a notice of claim as defined by § 4-141. Indeed, to construe the word action as including the notice of claim as argued by the plaintiff would have the practical effect of eliminating much of the statutory scheme contained within

chapter 53, which was designed to afford adjudication of claims against the state with its permission. See Hirschfeld v. Commissioner of Claims, 172 Conn. 603, 604, 376 A.2d 71 (1977). We conclude that because the plaintiff, in order to take advantage of the accidental failure of suit statute, must have commenced an action within the time limited bylaw and because the claim before the claims commissioner was not an action within the meaning of § 52-592, the trial court properly dismissed the present action. The judgment is affirmed. In this opinion CALLAHAN, C. J., and BORDEN, J., concurred.

General Statutes § 4-147 provides: “Notice of claim. Filing fees. Any person wishing to present a claim against the state shall file with the clerk of the Office of the Claims Commissioner a notice of claim, in duplicate, containing the following information:

(1) The name and address of the claimant; the name and address of his principal, if the claimant is acting in a representative capacity, and the name and address of his attorney, if the claimant is so represented; (2) a concise statement of the basis of the claim, including the date, time, place and circumstances of the act or event complained of; (3) a statement of the amount requested, and (4) a request for permission to sue the state, if such permission is sought.

A notice of claim, if sent by mail, shall be deemed to have been filed with the Office of the Claims Commissioner on the date such notice of claim is postmarked. Claims in excess of five thousand dollars shall be accompanied by a check or money order in the sum of fifty dollars payable to the treasurer, state of Connecticut. Claims for five thousand dollars or less shall be accompanied by a check or money order in the sum of twenty-five dollars payable to the treasurer, state of Connecticut.

Fees may be waived by the commissioner for good cause but such action by the commissioner shall not relieve the claimant from the obligation of filing his notice of claim in timely fashion within the statute of limitations under

section 4-148. The clerk of the Office of the Claims Commissioner shall promptly deliver a copy of the notice of claim to the attorney general. Such notice shall be for informational purposes only and shall not be subject to any formal or technical requirements, except as may be necessary for clarity of presentation and facility of understanding.” General Statutes § 52-592 provides in pertinent part: “Accidental failure of suit; allowance of new action, (

a) 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, or, if the plaintiff is dead and the action by law survives, his executor or administrator, may commence a new action, except as provided in subsection (

b) of this section, for the same cause at any time within one year after the determination of the original action or after the reversal of the judgment. When the doctrine of sovereign immunity is applicable, the state must consent to be sued in order for a claimant to pursue any monetary claim against the state. White v. Burns, 213 Conn. 307, 312, 567 A.2d 1195 (1990). The claims commissioner may waive that immunity pursuant to General Statutes § 4-160 (

a) and consent to suit, but until that occurs, the Superior Court has no jurisdiction to hear any such monetary claim. “In keeping with that premise, the entire legislative scheme of

chapter 53, which authorizes claims against the state, makes clear that it is the claims commissioner, pursuant to legislation, that can waive sovereign immunity . . . .” Krozser v. New Haven, 212 Conn. 415, 424, 562 A.2d 1080 (1989), cert. denied, 493 U.S. 1036, 110 S. Ct. 757, 107 L. Ed. 2d 774 (1990). Indeed, as § 4-160 (

a) expressly provides, “[w]hen the claims commissioner deems it just and equitable, he may authorize suit against the state . . . .” General Statutes § 52-556 provides: “Actions for injuries caused by motor vehicles owned by the state. Any person injured in person or property through the negligence of any state official or employee when operating a motor vehicle owned and insured by the state against personal injuries or property damage shall have a right of action against the state to recover damages for such injury.” General Statutes § 4-142 provides: “Claims commissioner. Excepted claims.

There shall be a claims commissioner who shall hear and determine all claims against the state except:

(1) Claims for the periodic payment of disability, pension, retirement or other employment benefits; (2) claims upon which suit otherwise is authorized by law; (3) claims for which an administrative hearing procedure otherwise is established by law; (4) requests by political subdivisions of the state for the payment of grants in lieu of taxes, and (5) claims for the refund of taxes.” The plaintiff questions the operative effect of § 52-556.

In specific, he ponders whether a claimant should bypass the claims commissioner and bring a direct action against the state in light of two substantive requirements of the statute: (1) that the state owned the motor vehicle involved in the accident; (2) and it maintained a policy of liability insurance. The plaintiff suggests that these are conditions precedent that are better addressed by the claims commissioner who can help the injured party to ascertain this information.

In this regard, § 52-556 is no different from General Statutes § 13a-144, which imposes liability on the commissioner of motor vehicles for injuries occurring on “any defective highway, bridge or sidewalk which it is the duty of the commissioner ... to keep in repair . ...” If the highway is not part of the “state highway system,” the question whether it is the commissioner’s duty to repair or maintain could, for example, turn on General Statutes § 13b-30 (requiring commissioner of transportation to maintain roads on grounds of state institutions, parks and other agencies). See Amore v.

Frankel, 228 Conn. 358, 367, 636 A.2d 786 (1994). The plaintiff in such an instance would be cxjtected to set forth the requisite pleadings following an adequate investigation confirming those facts. Id., 368. In the present case, the plaintiff had a relatively light burden in order to bring a claim under § 52-556. He does not dispute that the state owned and insured the vehicle in question. Had he discovered, however, that the vehicle in issue was not owned or insured by the state, then the action would not have satisfied § 52-556 and would, therefore, be authorized under § 4-142.

The decision to impose upon a plaintiff the statutory requirements of § 52-556 is a legislative one, the wisdom of which is not presently before us. The claims commissioner dismissed the claim without prejudice. He remarked that all parties had been acting in good faith attempting, throughout the time the claim had been pending, to settle the matter within the scope of the fleet policy and the state police professional liability policy. The claims commissioner further opined that § 52-592 would apply in this case to salvage the plaintiffs action, an opinion that is not binding on this court.

The parties do not dispute that the present action was commenced beyond the applicable statute of limitations period. See General Statutes § 52-584. Because the trial court was called upon to interpret § 52-592 in the context of a motion to dismiss, which admits all well pleaded facts; American Laundry Machinery, Inc. v. State, 190 Conn. 212, 217, 459 A.2d 1031 (1983); and because the plaintiff never questioned whether a motion to dismiss was the proper procedural vehicle, the trial court properly decided the motion on the record alone. Barde v. Board of Trustees, 207 Conn. 59, 62, 539 A.2d 1000 (1988).

Furthermore, we note that the plaintiff never claimed to the trial court or to this court on appeal that the defendants’ motion to dismiss before the trial court was improper because there were equitable factors that would have allowed the plaintiff to circumvent the statute of limitations. Contrary to the suggestion in the dissents, there is no indication in the record of any wrongdoing by the state during the period that the claim was before the claims commissioner that would merit such equitable considerations, and the plaintiff has never suggested the likelihood of any such conduct.

Indeed, the plaintiff could not tell this court when the state first asserted that the claims commissioner lacked authority to decide the claim, and despite the dissents’ suggestions to the contrary, there is no definitive evidence in the record to say one way or the other whether the state’s assertion was made before the statute of limitations on the underlying claim had run. General Statutes § 4-100 provides in pertinent part: “Authorization of actions against the state, (

a) When the claims commissioner deems it just and equitable, he may authorize suit against the state on any claim which, in his opinion, presents an issue of law or fact under which the state, were it a private person, could be liable. “(

b) In each action authorized by the claims commissioner pursuant to subsection (

a) of this

section or by the general assembly pursuant to

section 4-159, the claimant shall allege such authorization and the date on which it was granted. The state waives its immunity from liability and from suit in each such action and waives all defenses which might arise from the eleemosynary or governmental nature of the activity complained of. The rights and liability of the state in each such action shall be coextensive with and shall equal the rights and liability of private persons in like circumstances. “(

c) No such action shall be brought but within one year from the date such authorization to sue is granted. With respect to any claim pending before the claims commissioner on October 1, 1992, or presented to the claims commissioner on or after said date 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. Action shall be brought against the state as party defendant in the judicial district in which the claimant resides or, if the claimant is not a resident of this state, in the judicial district of Hartford-New Britain or in the judicial district in which the claim arose. “(

d) Civil process directed against the state shall be served as provided by

section 52-64. . . .” “[A] writ of summons is a statutory prerequisite to the commencement of a civil action. . . . [I]t is an essential element to the validity of the jurisdiction of the court. . . . Although the writ of summons need not be technically perfect, and need not conform exactly to the form set out in the Practice Book . . . the plaintiffs complaint must contain the basic information and direction normally included in a writ of summons.” (Citations omitted.) Hillman v. Greenwich, 217 Conn. 520, 526, 587 A.2d 99 (1991).

A writ of summons, which is part of a citation, must contain a direction to a duly authorized officer to summon the defendant to appear in court on a specific day to answer the complaint. Id., 524-25. In his argument that a claim constitutes an action under § 52-592, we note that the plaintiff does not draw any distinctions based on the relief sought under § 4-141. In other words, although the plaintiff requested both money damages and permission to sue the state, he does not argue that a claim for money damages is an action under § 52-592 even if a claim for permission to sue is not.

Moreover, had the plaintiff advanced such an argument, our analysis of the statutory scheme and the role of the claims commissioner does not suggest that such a distinction should be made.

Justice McDonald’s conclusion, in his dissent, that this court should nevertheless reverse the judgment of the trial court as plain error is jurisprudentially unwarranted and unsound. “Plain error is properly reserved for those extraordinary situations where the error is so obvious that the fairness and integrity of and public confidence in the judicial process would be impaired were we to fail to address an issue that was not raised or preserved at trial. Commissioner of Health Services v. Youth Challenge of Greater Hartford, Inc., 219 Conn. 657, 671, 594 A.2d 958 (1991); Skrzypiec v.

Noonan, 228 Conn. 1, 14-15, 633 A.2d 716 (1993); Dubois v. General Dynamics Corp., 222 Conn. 62, 68-69, 607 A.2d 431 (1992).” (Internal quotation marks omitted.) Lynch v. Granby Holdings, Inc., 230 Conn. 95, 98, 644 A.2d 325 (1994). This case hardly falls within this limited exception to our requirement that issues must be properly preserved to merit appellate review.