Opinion
No. CV06-5000769S
April 5, 2007
MOTION TO DISMISS
The plaintiff, Sandra Deleskis, moves to dismiss the complaint of the intervening plaintiff, ARC of Southington, Inc. (ARC). Deleskis argues that the intervening complaint should be dismissed because ARC did not intervene within thirty days pursuant to General Statutes § 31-293. ARC argues that the notice it received pursuant to § 31-293 violated its rights to due process because it did not inform ARC that its rights would be permanently lost if it did not intervene. Deleskis argues that the notice given conforms to the language of the statute.
In Worsham v. Greifenberger, 242 Conn. 432, 698 A.2d 8.67 (1997), the court noted that "under [General Statutes] § 31-293, an employee or employer who brings a third party action must simply notify the other of two facts: (1) the fact that the action has been brought; and (2) the name of the court to which the writ in the action is returnable. The plain terms of the statute require no more. (Internal quotation marks omitted.) Id., 437. The court held, however, that the due process clause also applies when evaluating the sufficiency of notice under § 31-293. Id. "[I]n order for the abatement provision of § 31-293 to be invoked against a party, the notice given pursuant to that statute must have comported with both the statutory requirements and the due process clause." Id., 444. In addition to the explicit requirements of the statute, to comply with the due process clause, the court required "notice that the recipient's right to bring an action against the third party tortfeasor will be permanently lost if the recipient does not move to intervene in the action within thirty days of such notification." (Emphasis added.) Id., 444-45.
In the present case, Deleskis' notice to ARC included the sentence "[i]f you fail to join as a party plaintiff within the 30 day time period, your right of action against those defendants shall abate." The language used by the plaintiff is constitutionally deficient because the word "abate," although used in the statute, did not adequately apprise ARC that its right to intervene would be permanently lost.
In Proscino v. Oswald, Superior Court, judicial district of Fairfield, Docket No. CV 01 383787 (January 29, 2003, Thim, J.) the court held that identical language using the word "abate" did not satisfy due process. In addition, in Gregory v. Wainright, Superior Court, judicial district of New London, Docket No. CV 02 562732 (September 5, 2003, Hurley, J.) ( 35 Conn. L. Rptr. 411), the court held that a notice that included a copy of the statute, containing similar language, was also deficient. Although the word "abate" is taken directly from the statute, it is not the statute, but the due process clause that requires that a party be informed of the possibility that, unless it intervenes, its right to bring an action will be permanently lost. It must be noted that "recipients of [a] § 31-293 notice will not ordinarily have legal training . . ." Worsham v. Greifenberger, supra, 242 Conn. 441. What is required is "a reasonably clear statement of the legal effect of its statutory terms." Id.
ARC has provided the court with nine separate definitions of the words "abate." All of the definitions support the interpretation that the word can mean "to make less active or intense." See, e.g., Merriam-Webster's Collegiate Dictionary (10th Ed. 1993). The definitions submitted do not support an interpretation that the definition of the word "abate" means that the right of action will be "lost permanently."
Accordingly, the motion to dismiss is denied.