author: BORDEN, J. BERDON, J.,

text:
    ALICIA ERICKSON ET AL. v. DOROTHY ERICKSON, EXECUTRIX (ESTATE OF RONALD K. ERICKSON)
    (SC 15860)
    Borden, Berdon, Katz, Palmer and Peters, Js.

      Argued March 24
    officially released August 18, 1998

      Minor C. Sterling, with whom was Howard A. Jacobs, for the appellant-appellee (named plaintiff).

      Jeremiah Donovan, for the appellee-appellant (defendant).

       The panel in the case was originally composed of Justices Borden, Berdon, Katz, McDonald and Peters. After oral argument before this court, Justice McDonald recused himself from this appeal. Justice Palmer was then added to the panel, and he participated in the decision after reviewing the briefs and listening to the tape recording of the oral argument.

   Opinion

BORDEN, J.

The dispositive issue in this appeal is whether, pursuant to General Statutes (Rev. to 1995) § 45a-257 (a), the trial court should have admitted extrinsic evidence regarding the decedent’s intent that his will would not be revoked automatically by his subsequent marriage. The named plaintiff, Alicia Erickson, who is the daughter of the decedent, Ronald K. Erickson, appeals from the judgment of the trial court in favor of the defendant, Dorothy Erickson, the executrix of the estate of the decedent, dismissing the plaintiffs appeal from the decree of the Probate Court for the district of Madison. The Probate Court had admitted the will of the decedent to probate. The trial court ruled that the decedent’s will, which had been executed shortly before his marriage to the defendant, provided for the contingency of marriage.

The plaintiff claims on her appeal that the trial court improperly concluded that the decedent’s will provided for the contingency of marriage. The defendant claims on her cross appeal that the trial court improperly excluded certain extrinsic evidence regarding the decedent’s intent. We conclude that the trial court should have permitted the defendant to introduce extrinsic evidence of the decedent’s intent. Accordingly, we reverse the judgment of the trial court and order a new trial.

Certain facts in this appeal are undisputed. On September 1, 1988, the decedent executed a will. At that time, he had three daughters and was unmarried. Two days later, on September 3, 1988, he married the defendant. He died on February 22, 1996.

The six articles of the will provide as follows. The first article provides for the payment of funeral expenses and debts by the estate. The second article states that the residue of the estate will pass to the defendant. The third article provides that if the defendant predeceases the decedent, one half of the residuary estate will pass in equal parts to the decedent’s three daughters, Laura Erickson Kusy, Ellen Erickson Cates and Alicia Erickson, and one half of the residuary estate will pass in equal parts to Thomas Mehring, Christopher Mehring, Maureen Mehring and Kathleen Mehring, the children of the defendant. The fourth article appoints the defendant as the executrix of the will, with Attorney Robert O’Brien as the contingent executor in the event that the defendant is unable to or refuses to serve as executrix. The fifth article gives the executrix or executor the power to dispose of property of the estate as necessary. The sixth article appoints the defendant as the guardian of any of the decedent’s children who have not reached the age of eighteen at the time of his death.

The Probate Court admitted the decedent’s will to probate. The plaintiff appealed from the Probate Court’s judgment. Prior to trial, the plaintiff filed a motion in limine to exclude extrinsic evidence of the decedent’s intent. The plaintiff argued that “[§] 45a-257 makes the Court’s inquiry very simple: to determine whether the will was revoked, the Court need examine only [the decedent’s] will, his marriage certificate to [the defendant], and his death certificate. Extrinsic evidence regarding [the decedent’s] intentions is inadmissible because the language of [the decedent’s] will is unambiguous, and therefore under ...[§] 45a-257 the operation of the marriage to revoke the will is automatic and mandatory.” The defendant, in opposition to the plaintiffs motion, made a detailed offer of proof to show the contrary intent of the decedent.

The admission of certain evidence was undisputed, namely, the will, the marriage certificate of the decedent and the defendant, and the decedent’s death certificate. The trial court denied the plaintiffs motion in limine with respect to the evidence that Thomas Mehring, Christopher Mehring, Maureen Mehring and Kathleen Mehring, who were named beneficiaries in the will, are the children of the defendant. The court granted the motion in limine, however, with respect to any other evidence regarding the decedent’s intent.

With respect to the other issue at trial, namely, whether the decedent’s will provided for the contingency of his marriage to the defendant, the trial court, in a de novo proceeding, concluded that the Probate Court properly had admitted the will to probate because the will provided for the contingency of marriage. The trial court reasoned that “[the decedent’s] will bequeathed all of his estate to the woman he was licensed to marry and did marry two days later. In his will, he named her executrix and designated her the guardian of his daughters, whose mother had previously died. The nature of these provisions, coupled with the extreme closeness in time of the marriage constitutes clear and convincing evidence of provision for the contingency of marriage. It would be preposterous to assume that [the decedent] was instead executing a will to make provisions that were to be revoked two days later.” Accordingly, the trial court rendered judgment affirming the Probate Court’s judgment admitting the will, and denied the plaintiffs appeal. This appeal followed.

The plaintiff claims that because the will did not expressly provide for the contingency of marriage, the trial court improperly concluded that the decedent’s will provided for the contingency of marriage and, therefore, that his subsequent marriage did not automatically revoke his will under § 45a-257 (a). The plaintiff argues that in determining whether a will provides for contingency of a subsequent marriage, the court may consider only the language of the will, and that the will in question in this case does not include any language referring to the contingency of marriage, such as “the words ‘if I marry,’ ‘when I marry,’ ‘my future wife’ or even ‘my fiancee.’ In fact the words ‘wife,’ ‘spouse’ and ‘marry’ do not appear within the four corners of the will.”

In contrast, the defendant claims that the trial court improperly excluded extrinsic evidence of the decedent’s intent establishing that his subsequent marriage to her would not result in the revocation of his will. In the alternative, the defendant argues that there is sufficient language within the will itself, without resort to extrinsic evidence, to indicate that the decedent did not intend for his will to be revoked upon his marriage to her.

We conclude that the will, in and of itself, did not provide for the contingency of the subsequent marriage of the decedent and, therefore, under existing case law, properly would have been revoked by that marriage pursuant to § 45a-257 (a). We also conclude, however, that under the circumstances of this case, the trial court improperly excluded evidence of a mistake by the scrivener that, if believed, would permit a finding that the will provided for the contingency of marriage. We therefore reverse the judgment of the trial court and order a new trial in which such evidence may be considered by the trial court.

On the basis of existing case law, the question of whether a will provides for the contingency of a subsequent marriage must be determined: (1) from the language of the will itself; and (2) without resort to extrinsic evidence of the testator’s intent. Fulton Trust Co. v. Trowbridge, 126 Conn. 369, 372, 11 A.2d 393 (1940) (execution of will followed by adoption of child; no language in will providing for such contingency); Strong v. Strong, 106 Conn. 76, 79-80, 137 A. 17 (1927) (execution of will followed by birth of child; no language in will providing for such contingency); cf. Czepiel v. Czepiel, 146 Conn. 439, 442, 151 A.2d 878 (1959) (language in will provided for possible subsequent marriage); Blake v. Union & New Haven Trust Co., 95 Conn. 194, 196-97, 110 A. 833 (1920) (language in will provided for subsequent birth of child). Applying this standard, we conclude that the trial court should not have admitted the will because, notwithstanding the inferences that the trial court drew from the dates of the marriage license and the will, and from the identity of certain of the named beneficiaries in the will, there was no language in the will providing for the contingency of the subsequent marriage of the decedent. Thus, this will fell on that side of the dividing line encompassing those wills that do not, in and of themselves, provide for such a contingency; see Fulton Trust Co. v. Trowbridge, supra, 372; Strong v. Strong, supra, 80; and beyond that side of the line encompassing those wills that do provide for such a contingency. See Czepiel v. Czepiel, supra, 440; Blake v. Union & New Haven Trust Co., supra, 196.

This conclusion does not, however, end our inquiry in this case. In Connecticut Junior Republic v. Sharon Hospital, 188 Conn. 1, 2, 448 A.2d 190 (1982), this court considered the issue of “whether extrinsic evidence of a mistake by a scrivener of a testamentary instrument is admissible in a proceeding to determine the validity of the testamentary instrument.” In a three to two decision, this court held that such evidence is not admissible. Id., 9. Upon further consideration, we now conclude that the reasons given by the dissent in that case are persuasive and apply to the facts of the present case. We, therefore, overrule Connecticut Junior Republic, and hold that if a scrivener’s error has misled the testator into executing a will on the belief that it will be valid notwithstanding the testator’s subsequent marriage, extrinsic evidence of that error is admissible to establish the intent of the testator that his or her will be valid notwithstanding the subsequent marriage. Furthermore, if those two facts, namely, the scrivener’s error and its effect on the testator’s intent, are established by clear and convincing evidence, they will be sufficient to establish that “provision has been made in such will for such contingency,” within the meaning of § 45a-257 (a).

In Connecticut Junior Republic v. Sharon Hospital, supra, 188 Conn. 9, this court reasserted the familiar rule that, although extrinsic evidence is not admissible to prove an intention not expressed in the will itself or to prove a devise or bequest not contained in the will, such evidence is admissible to identify a named devisee or legatee, to identify property described in the will, to clarify ambiguous language in the will, and to prove fraud, incapacity or undue influence. In rejecting the claim that extrinsic evidence should also be admissible to prove a scrivener’s error, the majority relied principally on our existing case law and on the risk of subverting the policy of the statute of wills. Id., 23 (Peters, J., dissenting). The majority acknowledged, however, that, as with any rule of law, time and experience could persuade to the contrary. “[Pjrinciples of law which serve one generation well may, by reason of changing conditions, disserve a later one. . . . Experience can and often does demonstrate that a rule, once believed sound, needs modification to serve justice better.” (Citations omitted; internal quotation marks omitted.) Id., 17-18. We are now persuaded to the contrary.

The dissent in that case by Justice Peters and joined by Justice Shea, concluded that it “would permit extrinsic evidence of a scrivener’s error to be introduced in litigation concerned with the admissibility of a disputed will to probate.” Id., 22. The dissent gave three principal reasons for its conclusion, each of which we consider to be persuasive and each of which applies to this case. See id., 22-26.

First, given that extrinsic evidence is admissible to prove that a will was executed by the testator “in reliance on erroneous beliefs induced by fraud, duress, or undue influence”; id., 22; there is no discernible policy difference between that case and a case in which “a will is executed in reliance on erroneous beliefs induced by the innocent error, by the innocent misrepresentation, of the scrivener of a will.” Id., 23. In each instance, “the testamentary process is distorted by the interference of a third person who misleads the testator into making a testamentary disposition that would not otherwise have occurred.” Id., 22-23. “In each instance, extrinsic evidence is required to demonstrate that a will, despite its formally proper execution, substantially misrepresents the true intent of the testator.” Id., 23.

Similarly, in the present case, there is no discernible policy difference between extrinsic evidence offered to show fraud, duress or undue influence, and extrinsic evidence offered to show that a scrivener’s error induced the decedent to execute a will that he believed would survive his subsequent marriage. In both instances, the testamentary process was distorted by the interference of a third person who misled the testator into executing a will that would not otherwise have been executed — in the present case, a will that would be revoked upon his marriage because it did not contain language providing for the contingency of marriage. Thus, as in the case of fraud, duress or undue influence, extrinsic evidence is required to demonstrate that the will that the testator executed did not substantially state his true intention.

Second, the dissent recognized that, based on the policy of the statute of wills, the “risk of subversion of the intent of a testator, who cannot personally defend his testamentary bequest, is without doubt a serious concern.” Id., 24. The dissent, however, persuasively underscored the counterbalancing “risk of blindly enforcing a testamentary disposition that substantially misstates the testator’s true intent.” Id. Again drawing on the analogy to the case of fraud, duress or undue influence, the dissent stated that “[h]ad the decedent’s lawyer deliberately and fraudulently altered the second codicil, the relevant extrinsic evidence would unquestionably have been admitted.” Id., 25. The dissent contended that “innocent misrepresentation is treated as generally equivalent to fraud in terms of its legal consequences.” Id. Therefore, the dissent asserted, the “[statute of [w]ills does not compel enforcement of testamentary dispositions that a testator never intended to make.” Id.

Similarly, in the present case, had the decedent’s attorney deliberately and fraudulently, rather than innocently but mistakenly, misrepresented to the decedent that his will would be valid despite his subsequent marriage, it is at least arguable that the beneficiaries of that fraudulent conduct, namely, the heirs-at-law of the decedent who would inherit in the event of his intestacy, would not be permitted to take advantage of that fraud, and that a court of equity could impress a constructive trust on their inheritance. We conclude that, analogously, in this case, the extrinsic evidence should be admissible to establish the decedent’s true intent.

Third, the dissent examined and rejected the two main objections to the admission of extrinsic evidence of a scrivener’s error. One objection was “that whatever error the scrivener may have made was validated and ratified by the testator’s act in signing his will.” Id., 26. The dissent responded, correctly in our view, that, although “signing [a] will creates a strong presumption that the will accurately represents the intentions of the testator, that presumption is a rebuttable one.” Id. Similarly, in the present case, although the fact that the decedent signed the will may create a rebuttable presumption that he did not intend it to survive his subsequent marriage, that presumption should be rebut-table by persuasive extrinsic evidence to the contrary.

The other objection was “that allowing extrinsic evidence of mistake will give rise to a proliferation of groundless will contests.” Id. The dissent presented a two part response, with which we also agree. First, it noted that, “[i]n the law of contracts, where the parol evidence rule has undergone considerable erosion, this risk has not been found to have been unmanageable. In the law of wills, the risk is limited by the narrowness of the exception that this case would warrant . . . [namely, to] permit the opponent of a will to introduce extrinsic evidence of the error of a scrivener, and [to] require proof of such an extrinsic error to be established by clear and convincing evidence.” Id., 26-27

Similarly, in the present case, the admissibility of such extrinsic evidence, in our view, will not prove to be any less manageable than in cases of parol evidence in contract disputes. Furthermore, we would impose the same elevated burden of proof on the proponent of the will in a case such as this. The proponent would have to establish the scrivener’s error by clear and convincing evidence.

We recognize that the dissent’s position in Connecticut Junior Republic would have resulted in the consideration of extrinsic evidence of a scrivener’s error offered for the purpose of preventing admission of a testamentary document to probate, rather than for the purpose oí procuring such admission, as in the present case. Regardless of that distinction, however, the mistake doctrine advocated by the dissent in Connecticut Junior Republic applies equally to the present case. The dissent in Connecticut Junior Republic phrased the issue in that case as follows: “Must the true intent of the testator be thwarted when, because of the mistake of a scrivener, he has formally subscribed to a written bequest that substantially misstates his testamentary intention?” Id., 22. That is precisely the issue in the present case. The dissent in Connecticut Junior Republic answered that question in the negative, recognizing that evidence of a scrivener’s mistake should be admissible where offered to establish that a written bequest should not be admitted to probate because its execution was the product of a mistake of the scrivener and, therefore, did not embody the disposition intended by the testator. Id., 22-23. Likewise, in the present case, evidence of a scrivener’s mistake should be admissible to establish that a written bequest should be admitted to probate because the disposition provided by the bequest would have obtained, in accordance with the decedent’s intent, but for the scrivener’s mistake.

Finally, we address one other consideration that was not present in Connecticut Junior Republic, which might be perceived to be present in this case. That is the potential for past reliance by testators on our prior case law. We do not believe that this is a persuasive consideration. It is very unlikely that, in reliance on such case law, any testators executed wills and deliberately omitted language providing for the contingency of marriage in order to be sure that their wills would be revoked by a subsequent marriage. Moreover, it is very unlikely that any testators, having married after executing such wills, deliberately did not make new testamentary dispositions in reliance on the proposition that their prior wills had been revoked by that subsequent marriage.

Applying these principles to the facts of the present case, we conclude that the extrinsic evidence offered, if believed, could prove clearly and convincingly that there was a scrivener’s error that induced the decedent to execute a will that he intended to be valid despite his subsequent marriage. The offer of proof indicates that the evidence would be susceptible to an inference by the fact finder that there had been an implied assertion by the scrivener that the will would be valid despite the decedent’s subsequent marriage. This inference could have been bolstered, moreover, by the evidence of the conversations between the decedent and the scrivener shortly before the decedent’s death.

The judgment is reversed and the case is remanded for a new trial.

In this opinion KATZ, PALMER and PETERS, Js., concurred.

BERDON, J.,

concurring. Although I have some reservation with identifying the error on the part of the attorney as a “scrivener’s error” in this case, I concur in the result reached by the majority. More specifically, I agree that Connecticut Junior Republic v. Sharon Hospital, 188 Conn. 1, 448 A.2d 190 (1982), should be overruled. Justice Peters’ dissent in Connecticut Junior Republic, as joined by Justice Shea, points out that the opponent of a will should be allowed “to introduce extrinsic evidence of the error of a scrivener, and [that] . . . proof of such an extrinsic error [must] be established by clear and convincing evidence.” Id., 26-27. Although “antiquity does not automatically disqualify common law precedents”; id., 23 (Peters, J., dissenting); our law should serve modem needs.

       General Statutes (Rev. to 1995) § 45a-257 (a) provides: “If, after the making of a will, the testator marries or is divorced or his marriage is annulled or dissolved or a child is bom to the testator or a minor child is legally adopted by him, or a child is born as a result of A.I.D. as defined in section 45a-771, to which the testator has consented in accordance with subsection (a) of section 45a-772, and no provision has been made in such will for such contingency, such marriage, divorce, annulment, dissolution, birth or adoption of a minor child shall operate as a revocation of such will, provided such divorce, annulment or dissolution shall not operate as a revocation of such will if the spouse of the testator was not a beneficiary under such will. The revocation of such will by divorce, annulment or dissolution of marriage shall be effective only as to wills executed on and after October 1, 1967.”
      Section 45a-257 (a) was repealed by 1996 Public Acts, No. 96-95, and, to the extent that § 45a-257 (a) dealt with the effect of marriage on a will, it has been replaced by General Statutes § 45a-257a, which provides: “Failure of testator to provide for surviving spouse who married testator after execution of will. Determination of share of estate, (a) If a testator fails to provide by will for the testator’s surviving spouse who married the testator after the execution of the will, the surviving spouse shall receive the same share of the estate the surviving spouse would have received if the decedent left no will unless: (1) It appears from the will that the omission was intentional; or (2) the testator provided for the spouse by transfer outside the will and the intent that the transfer be in lieu of a testamentary provision is shown by the testator’s statements, or is reasonably inferred from the amount, of the transfer or other evidence.
      “(b) In satisfying a share provided in subsection (a) of this section, devises and legacies made by the will abate in accordance with section 45a-426.”
      The effective date of § 45a-257a was January 1, 1997. Therefore, that, statute does not apply to this case because the will in question was executed in 1988. At that time, the applicable statute was General Statutes § 45-162, which was transferred to § 45a-257 in 1991. Because that statute remained unchanged until Public Act 96-95, hereafter references to § 45a-257 are to the 1995 revision of the statute.

       The decedent’s other two daughters, Laura Erickson Kusy and Ellen Erickson Gates, did not appeal from the judgment of the trial court. Hereafter, we refer to Alicia Erickson as the plaintiff.

       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, now Practice Book (1998 Rev.) § 65-1, and General Statutes § 51-199 (c).

       The defendant’s name before her marriage to the decedent was Dorothy A. Mehring.

       The plaintiff also claims that the trial court improperly: (1) admitted evidence regarding the identity of certain named beneficiaries in the will; and (2) considered the time period between the execution of the decedent’s will and his subsequent marriage. In view of our conclusion that a new trial is required at which the defendant’s proffered extrinsic evidence will be admissible, we need not address these two claims because it is not clear that they will arise again.

       The decedent’s will provides in relevant part:
      “Article I: I order and direct that my funeral expenses and my just debts, if any, except such as are barred by the Statute of Limitations or otherwise outlawed, be paid as soon as may be practicable; provided, however, that if any such debts are secured by mortgages, my Executrix or Executor, as the case may be, shall pay such debts so secured only if, in her or his discretion, such payment shall appear to be for the benefit of my estate; and provided further that all legacy, succession, inheritance, transfer and estate taxes which may become payable by reason of my death, whether or not levied on property or estate passing by this, my Last Will and Testament, shall be paid by my Executrix or Executor out of my residuary estate in the same manner as an expense of administration, and shall not be pro rated or apportioned among or charged against the respective devisees, legatees, beneficiaries, transferees or other recipients, nor charged against any property passing or which may have passed to any of them, and that my Executrix or Executor shall not be entitled to reimbursement for any portion of any such tax from any person.
      “Article II: All the rest, residue and remainder of my estate and property (hereinafter called my residuary estate) of every nature, character and description, whether real, personal or mixed, and wheresoever situate, of which I may die seized or possessed, or in or to which I may in any wise be interested or entitled at the time of my death, or under or with respect to which I shall have any power of disposition or appointment at the time of my death, I give, devise and bequeath to DOROTHY A. MEHRING, of Madison, Connecticut, provided she survives me.
      “Article III: If said DOROTHY A. MEHRING predeceases me, I give, devise and bequeath my said residuary estate as follows:
      “A. ONE-HALF (1/2), in equal parts, to my daughters, LAURA ERICKSON, ELLEN ERICKSON and ALICIA ERICKSON, all of Madison, Connecticut, or to the survivors or survivor of them.
      “B. ONE-HALF (1/2), in equal parts, to THOMAS MEHRING and CHRISTOPHER MEHRING, both of Madison, Connecticut, and MAUREEN MEHRING and KATHLEEN MEHRING, both of Guilford, Connecticut, or to the survivors or survivor of them.
      “Article IV: I hereby nominate, constitute, designate and appoint said DOROTHY A. MEHRING to be the Executrix of this, my Last Will and Testament, or in the event of her inability or refusal to act, I hereby nominate, constitute, designate and appoint ATTORNEY ROBERT J. O’BRIEN, of West Hartford, Connecticut, to be the Executor of this, my Last Will and Testament, and I order and direct that in no event shall my Executrix or Executor, as the case may be, be required to give any bond, undertaking or other security for the faithful performance of her or his duties as Executrix or Executor.
      “Article V: I hereby give and grant unto my Executrix or Executor full power and authority to sell, convey, mortgage, pledge, lease, release or in any other way to dispose of the whole or any part of my real or personal property upon such terms and conditions as to my said Executrix or Executor, in her or his discretion, may seem proper and desirable, and for such purposes to execute, acknowledge and deliver any and all instruments, under seal or otherwise, which may be necessary or required, and I hereby reheve my said Executrix or Executor from any and all responsibility for errors of judgment and mistakes of fact that she or he may be considered by anyone to have made in connection therewith. I hereby further authorize and empower my said Executrix or Executor to effect such divisions, partitions, apportionments or distributions of property, whether real or personal, as may be necessary or convenient under this, my Last Will and Testament, and in effecting the same, to divide, partition, apportion and distribute the same in land without converting the same into cash or my said Executrix or Executor may sell the same and convert it into cash and distribute such cash among those entitled thereto, or she or he may make distribution partly in kind and partly in cash, and at such valuations as my said Executrix or Executor may deem proper. In effecting any divisions, partitions, apportionments or distributions, my Executrix or Executor may convey or assign different property or lands of property to and among the persons entitled to distribution. The valuations placed by my said Executrix or Executor on any such property so divided, partitioned, apportioned or distributed in kind shall be binding upon all persons interested in this, my Last Will and Testament. My Executrix or Executor shall have full power, in her or his discretion, to litigate, compromise, adjust and settle all claims for or against my estate, and all controversies arising out of or in connection with the property constituting all or a part of my estate, upon such terms and conditions as she or he may deem just, and the decision of my Executrix or Executor shall be binding upon all persons interested in this, my Last Will and Testament. All powers conferred in this Article on my Executrix or Executor may be exercised by any person appointed by the Probate Court to administer my estate with the Will annexed. All powers conferred on my Executrix or Executor may be exercised by any person to whom ancillary letters testamentary may be issued in any other State than the State in which domiciliary letters testamentary are issued.
      “Article VI: If at the time of my death any of my said daughters, LAURA ERICKSON, ELLEN ERICKSON and ALICIA ERICKSON, have not attained the age of eighteen (18) years, I nominate, constitute, designate and appoint said DOROTHY A. MEHRING to be the guardian of the person and of the estate of such minor child or children. In the event of her inability or refusal to act as such guardian, I hereby nominate, constitute, designate and appoint LOIS VALERIO and PETER VALERIO, both of West Hartford, Connecticut, or the survivor of them, to be the guardians of the person and of the estate of such minor child or children. I direct that no bond or other security shall be required of my guardian or guardians for the faithful performance of her, their or his duties as such guardian or guardians.”

       The defendant’s offer of proof provided: “May it please the court, if [O’Brien and the defendant] were permitted to testify they would testify as follows. [O’Brien] would testily that he is an attorney before the Hartford [bar], that he was lor many years prior to the marriage in 1988 the attorney for [the decedent].
      “In addition to being his attorney on a variety of business and personal matters, he was also a close friend of [the decedent]. He was aware that [the decedent] was courting [the defendant] who became [his wife] and he was invited to their wedding which was scheduled for September 3, 1988.
      “About one week prior to that time he received a call from [the decedent] saying he and [the defendant] immediately after the wedding were going to go to New York and then take a Concorde flight to Ireland and they wanted to arrange, as many of us do prior to events like that, for their wills to be drafted prior to the marriage ceremony.
      “He gave him instructions that the wills would be identical, that is, that all of his estate was to go to [the defendant]. If [the defendant] should predecease him it should go to, half should go to his children, half to [the defendant’s] children. That [the defendant] should be the administratrix of the will, the executrix, excuse me, the executrix of the will and that she would be appointed guardian of his children, and that [her] will be exactly the same.
      “On Thursday, September 1, two days before the wedding, the two of them went to Hartford and executed the wills. I would offer [the defendant’s] will as a piece of evidence. And I represent to the court that it is a mirror image of [the decedent’s] will that you have admitted as an exhibit. She, like [the decedent], leaves everything to him. If he should predecease her half of her estate goes to his children, half to her children. He appoints her guardian of his children and appoints [her] executor of his estate.
      “During the course of the execution of the wills there was no conversation whatsoever about the fact that the Saturday marriage would revoke the will that had been drafted on Thursday. The wedding to take place two days later would revoke the will that had been drafted on Thursday, although there was considerable discussion about the marriage itself and the festivities and the guests and things like that.
      “[O’Brien] would testify that the reason that he did not place in the will any specific mention of the marriage or talk about it at all with [the defendant] or [the decedent] was because in his view when a man executes a will two days before his marriage in which he leaves everything to the woman that he’s about to marry, makes her guardian of his children, makes her administrator of the, executor, executrix of the estate, and if she should predecease him, leaves half of his estate to her kids.
      “Clearly makes provision in the will for not just a contingency, but the imminent [inevitability] of the marriage that’s going to take place two days later. So he didn’t think there was any necessity] that he had to put in words when it was so clear that it was making—
      “He would further testily that in June of — he then became friends, close friends with [the defendant] as well as with [the decedent]. They lived together, he would testify they lived together up until 1995. Then in June of 1995 he received word that [the decedent] was seriously sick. . . . [T]wo or three days after [his] operation [O’Brien] visited him in the hospital. He learned from [the decedent] that [he] was dying and had a terminal disease.
      “[The decedent] said that he wanted to make sure, he wanted to look at his estate situation and make sure that everything was going to be, was going to go to his wife, [the defendant]. The attorney then returned to his office, checked the will out, made sure that the will said it was going to [the defendant] and so informed [the decedent],
      “By Thanksgiving [the decedent’s] condition had deteriorated to the extent that he was no longer able to continue functioning in everyday life and he was staying at home being cared for by [the defendant].
      “On February 8, 1996, [O’Brien] would testify he again visited his dying friend and his client. [The defendant] was present throughout the course of this conversation which lasted more than two hours.
      “Now much of this conversation was the kind of conversation that Your Honor would expect of one who is visiting a dying friend. They reminisced. They talked about politics. They talked about everything other than the disease for a while.
      “Then they got onto the topic of his estate. The will itself was taken out of the place where it was kept. They reviewed it. The attorney once again assured the dying man that all of his estate was going to [the defendant],
      “He then told the attorney that he wanted to make a separate provision for his children. He wanted the attorney to set up a corporation that would be called Sovereign Electric Company. He gave him a specific description of how the shares should be distributed. Thirteen percent of the shares were to go to each daughter. The attorney did set up that corporation. The shares were distributed to the daughters.
      “And [the defendant] will testify that she has purchased the shares from the daughters for one hundred thousand dollars each daughter. That is, three hundred thousand dollars for the 39 percent that they received as a result of that. He then would, as Your Honor knows, that was on February 8. On February 22, [the decedent] died.
      “[The defendant], may it please the court, would testify as follows. She is, in 1987 she was a widow. She had four children, T. Kevin, Kathleen, Maureen and Christopher. [The decedent], who would become her husband, had three children, Laura, Ellen and Alicia. They met in the fall of 1987. They courted and they became engaged on February 14, 1988.
      “They obtained a marriage license at the Town Clerk’s Office on August 22, 1988. That actually is a piece of evidence that’s before Your Honor in the form of the Marriage License.
      “They married in a church ceremony. She would testify that this ceremony was planned many, many months in advance. It was quite elaborate. There were about one hundred and fifty guests. She and [the decedent] acted together in planning all of the events of the wedding.
      “As the attorney has testified, their plan was to get married on . . . Saturday afternoon and evening after the reception to go to New York, stay in a hotel that night and then fly on the Concorde to Ireland the next day which is exactly what they did.
      “The invitations for the wedding and all the plans for the wedding were made for September 3, Saturday, September 3. In talking to [the decedent] they decided that before they flew off to Europe they should get their affairs in order. He made arrangements with his old friend, [O’Brien] in order to get wills drafted. The wills were as I’ve described to Your Honor, mirror wills.
      “On two days before the marriage, September 1, Thursday, they went up to [O’Brien’s] office. They conversed about the upcoming wedding. Everyone was aware that the wedding was going to take place, [O ’Brien], [the decedent] and his spouse and they executed the wills. During the course of the execution of the wills not only were, there was never a word concerning the fact that a marriage on Saturday might act to revoke a will that was executed on Thursday.
      “They did marry on September 3. [O’Brien] was a guest at their wedding. They did fly to Ireland the next day for their honeymoon. They lived happily until June of 1995.
      “On June 23, 1995, [the decedent] underwent an operation. Following the operation he was told that he had terminal cancer and was going to die. He was fully aware of that.
      “She was not present during (he first meeting of [O’Brien] with [the decedent] at the hotel. I’m sorry, at the hospital. She was present during the second meeting on February 8, 1996. She, like, [O’Brien] would testify that much of (he conversation that day was the kind of conversation one would expect between a friend and his friend who was dying, but they also made arrangements with respect, made more practical arrangements with respect to [the decedent’s] upcoming death. The will was retrieved. It was reviewed. [O’Brien] assured [the decedent] that his entire estate would pass to his widow.
      “He then requested, she would testify as [O’Brien] did, that he then requested him to set up a corporation in which the stock would be owned, 13 percent of the stock would be owned by each of his daughters. [O’Brien] did that and distributed the stock to them and as a result, obviously, a corporation in which this kind of proceeding that we’re involved in now is in the background, is not going to be successful.
      “And so [the defendant] then paid each of the children, each of [the decedent’s] daughters one hundred thousand dollars apiece for their stock. [She] would testify that because of certain concerns that [the decedent] had about his daughters that he wanted to set up the corporation in the particular way that he set it up and that this was his specific intention with respect to taking care of his daughters after his death.
      “If I could have one more minute. And with that offer of proof, may it please the court, I rest my rebuttal of the case.”

       The defendant presents her claim as part of a cross appeal. Technically, however, her claim is not properly part of a cross appeal because the defendant was not aggrieved by the judgment of the trial court. Rather, it is a claim concerning an adverse ruling of the trial court that “should be considered on appeal in the event the appellant is awarded a new trial . . . .” Practice Book § 63-4 (a) (1) (B). Because we conclude that, on the basis of existing case law, the plaintiff would have been entitled to reversal of the trial court’s judgment, and because we conclude that, on the basis of the new case law that we articulate herein, a new trial must be granted, we consider the defendant’s evidentiary claim.

       One exception to this rule of evidentiary exclusion is that extrinsic evidence may be admitted to prove a testator’s intent where the language of the will is ambiguous. See, e.g., Fulton Trust Co. v. Trowbridge, 126 Conn. 369, 372, 11 A.2d 393 (1940). The defendant does not claim, however, that the language of the will in the present case was ambiguous.

       We acknowledge thatpermitting extrinsic evidence of ascrivener’s error will lead to the introduction of extrinsic evidence of intent, which, as we noted previously, is not permitted. For the reasons discussed herein, this common-law exception is no different, however, from the extrinsic evidence of intent permitted in cases alleging fraud, undue influence and duress.


source: Caselaw Access Project

author: BORDEN, J. BERDON, J., with whom MCDONALD, J.,

license: Public Domain

text:
    JOSEPH BOCCHINO, JR. v. NATIONWIDE MUTUAL FIRE INSURANCE COMPANY
    (SC 15660)
    Borden, Berdon, Norcott, Katz and McDonald, Js.
    Argued December 3, 1997
    officially released August 18, 1998

      Matthew J. Broder, for the appellant (plaintiff).

      Gordon R. Raynor, for the appellee (defendant).
   Opinion

BORDEN, J.

In this action to recover proceeds pursuant to a homeowner’s insurance policy, the plaintiff appeals from the judgment of the trial court in favor of the defendant. The trial court determined that the action had not been brought within one year of the date of the loss, as required by the policy, and that the accidental failure of suit statute, General Statutes § 52-592, did not operate to save the plaintiffs action. The plaintiff claims that the trial court improperly concluded that § 52-592 (a) did not save the action. We affirm the judgment of the trial court.

The facts and procedural history are undisputed. The plaintiff, Joseph Bocchino, Jr., owned a dwelling and detached garage in Bridgeport. Through a homeowner’s insurance policy purchased from the defendant, Nationwide Mutual Fire Insurance Company, the plaintiff insured the property against fire and various other types of loss. One of the provisions of the insurance policy provided that “[n]o action can be brought unless . . . the action is started within one year after the date of loss or damage.” This provision of the policy is mandated by General Statutes §§ 38a-308 (a) and 38a-307.

On November 16, 1991, the garage was damaged by fire, and the defendant paid the plaintiff for personal property loss but denied his proof of loss for the structure on the ground that it was “used in part or in whole for commercial business purposes” and, therefore, was not covered by the insurance policy. On November 6, 1992, within one year of the date of the loss, the plaintiff brought an action against the defendant for proceeds allegedly owed him pursuant to the policy. On June 24, 1994, however, that action was dismissed pursuant to Practice Book § 251, now Practice Book (1998 Rev.) § 14-3, for failure to prosecute with due diligence. On March 30, 1995, within one year of the date of the prior dismissal but beyond one year from the date of the fire loss, the plaintiff brought this action, the substantive claims of which are, for all material purposes, identical to those contained in the plaintiffs first complaint. The plaintiff alleged that the action was timely by virtue of the provisions of § 52-592 (a).

The case was tried to an attorney trial referee, who found the facts and recommended judgment for the plaintiff. The plaintiff moved the trial court for judgment in accordance with the report, and the defendant filed certain exceptions and objections to the referee’s report. The trial court found dispositive the defendant’s claims that the plaintiffs action was barred by the one year limitation period under the defendant’s insurance policy and that, under controlling case law, the provisions of § 52-592 (a) do not operate to save the plaintiffs action. Accordingly, the trial court rendered judgment for the defendant. This appeal followed.

The plaintiff claims that the trial court improperly concluded that § 52-592 (a) did not save this action, because, the plaintiff maintains, the defendant’s insurance policy provision requiring that an action be brought within one year of the date of the loss was mandated by the standard fire insurance policy form delineated in §§ 38a-308 (a) and 38a-307, and was, therefore, a “time limited by law” within the meaning of the savings provision of § 52-592 (a). Recognizing that prevailing case law has interpreted § 52-592 (a) as not applying to such provisions, however, the plaintiff urges us to overrule that case law. We decline to do so.

This case is controlled by our prior decisions in Chichester v. New Hampshire Fire Ins. Co., 74 Conn. 510, 51 A. 545 (1902), and Vincent v. Mutual Reserve Fund Life Assn., 74 Conn. 684, 51 A. 1066 (1902). In short, Chichester and Vincent held that the accidental failure of suit statute applies only to actions barred by an otherwise applicable statute of limitations, and not to an applicable contractual limitation period, irrespective of whether that period was required by a statutory form for an insurance policy. Chichester v. New Hampshire Fire Ins. Co., supra, 513-14; Vincent v. Mutual Reserve Fund Life Assn., 688. Moreover, Monteiro v. American Home Assurance Co., 177 Conn. 281, 283, 416 A.2d 1189 (1979), reaffirmed that holding, and, on several occasions since that decision, this court and the Appellate Court have further reaffirmed the limited application of the statute. See, e.g., Pintavalle v. Valkanos, 216 Conn. 412, 417, 581 A.2d 1050 (1990); Skibeck v. Avon, 24 Conn. App. 239, 243, 587 A.2d 166, cert. denied, 219 Conn. 912, 593 A.2d 138 (1991); Marangio v. Shop Rite Supermarkets, Inc., 11 Conn. App. 156, 160, 525 A.2d 1389, cert. denied, 204 Conn. 809, 528 A.2d 1155 (1987).

In Chichester, the plaintiff previously had brought an action on a fire insurance policy within the one year provision of the policy, but that action was nonsuited after the plaintiff had introduced all of his evidence, and his appeal was dismissed. Chichester v. New Hampshire Fire Ins. Co., supra, 74 Conn. 511. The plaintiff immediately — well within the one year provision of what is now § 52-592 (a) — commenced another action, and was met wdth the defense of the one year provision of the policy. Id. The plaintiff replied by relying on the accidental failure of suit statute. Id., 511-12. The trial court sustained the defendant’s demurrer to the plaintiffs reply, thus, in effect, validating the defense of the one year policy provision and rejecting the reliance on the accidental failure of suit statute. Id., 512.

This court affirmed the judgment of the trial court, holding that “[t]he provision in the policy sued upon requiring an action to be brought ‘within twelve months next after the fire’ does not operate as a statute of limitations; it is a part of the contract; the rights of the parties flow from the contract, and must be governed by the rules of law applicable to contracts. Such a provision in a contract of insurance is valid and binding upon the parties.” (Emphasis added.) Id., 512-13.

This court then specifically addressed, and specifically rejected, the claimed applicability of the accidental failure of suit statute, and the argument that it applied because the fire insurance policy, which contained the one year suit provision, was a standard policy mandated by our then insurance statutes. “The plaintiffs claim that [the accidental failure of suit statute] authorizes the bringing of this suit within one year after his nonsuit in the former action, is without foundation. That [statute] is an amendment to the statute of limitations and does not affect this contract.” (Emphasis added.) Id., 514. “The plaintiff also insists that Chap. 226 of the Public Acts of 1893, establishing a standard policy of insurance, in some way changes the agreement of the parties to such a policy into a statute of limitations. The Act clearly has no effect upon the contracts made in accordance with the form therein provided.” (Emphasis added.) Id. Subsequently, this court followed the rule of Chichester in Vincent v. Mutual Reserve Fund Life Assn., supra, 74 Conn. 686 (allegations that prior dismissed action on life insurance policy had been brought within one year policy provision “are immaterial”).

Our decisions in Chichester and Vincent cannot plausibly be read any way other than as holding that § 52-592 (a) does not apply to save a second action on an insurance policy brought beyond the applicable contractual limitation period but within one year of a timely, but unsuccessful, prior action on the same loss. Moreover, the decision in Chichester unequivocally concludes that the fact that the policy’s limitation period was mandated by a statutory standard fire insurance form is irrelevant. These precedents dictate the conclusion that the accidental failure of suit statute simply does not apply to the plaintiffs action in the present case. That statute applies to actions that would be time barred by an otherwise applicable statute of limitations, not to actions that are time barred by a contractual policy provision, irrespective of the fact that the policy provision was required by a statutory policy form.

Furthermore, this reading of Chichester was reaffirmed in 1979 when this court decided Monteiro v. American Home Assurance Co., supra, 177 Conn. 281. Although the accidental failure of suit statute was not involved in that case, this court cited Chichester for the following propositions: (1) “Since a provision in a fire insurance policy requiring suit to be brought within one year of the loss is a valid contractual obligation, a failure to comply therewith is a defense to an action on the policy unless the provision has been waived or unless there is a valid excuse for nonperformance; and such a condition requiring suit to be brought within one year does not operate as a statute of limitations”) (emphasis added) id., 283; and (2) “This condition is a part of the contract so that it controls the rights of the parties under the contract and, hence, such rights must be governed by the rules of law applicable to contracts. ” Id. This court then went on to reject the plaintiffs claim, under contract law, that he was excused from compliance with the one year suit provision by his attorney’s disability. Id., 285-87.

Indeed, since Monteiro, both this court and the Appellate Court have reaffirmed our understanding that § 52-592 (a) operates to save actions that would be barred by otherwise applicable statutes of limitations. In Pintavalle v. Valkanos, supra, 216 Conn. 417, this court approved the interpretation of § 52-592 (a) by the Appellate Court in Marangio v. Shop Rite Supermarkets, Inc., supra, 11 Conn. App. 159-60, and we stated that “[although § 52-592 is a remedial statute and must be construed liberally ... it should not be construed so liberally as to render statutes of limitation virtually meaningless.” (Citations omitted; emphasis added.) See Skibeck v. Avon, supra, 24 Conn. App. 243 (same); see also Beckenstein v. Potter & Carrier, Inc., 191 Conn. 150, 160, 464 A.2d 18 (1983) (“[T]he legislature has specifically delineated a number of instances where the statute of limitations will be tolled. See General Statutes §§ 52-592 through 52-595.” [Emphasis added.]).

Thus, our law has been clear since 1902, when we twice held that the accidental failure of suit statute applies to cases barred by a statute of limitations and does not apply so as to obviate an insured’s contractual obligation to commence an action within one year of the loss insured against. Furthermore, the limited application of § 52-592 has been reaffirmed by our appellate courts in 1979, 1983, 1987, 1990 and 1991. Pursuant to that body of law, any excuse for failing to bring an action within an insurance policy’s contractual period of limitation must have its source in contract law, not in § 52-592 (a).

Recognizing that Chichester is indistinguishable from the present case, the plaintiff urges us to overrule it. This we decline to do. We generally have adhered to the notion that “[i]n assessing the force of stare decisis ... we should be especially cautious about overturning a case that concerns statutory construction. . . .

“When we construe a statute, we act not as plenary lawgivers but as surrogates for another policy maker, the legislature. In our role as surrogates, our only responsibility is to determine what the legislature, within constitutional limits, intended to do. Sometimes, when we have made such a determination, the legislature instructs us that we have misconstrued its intentions. We are bound by the instructions so provided. See, e.g., Reliance Ins. Co. v. American Casualty Co. of Reading, Pennsylvania, 238 Conn. 285, 291, 679 A.2d 925 (1996), and cases cited therein. More often, however, the legislature takes no further action to clarify its intentions. Time and again, we have characterized the failure of the legislature to take corrective action as manifesting the legislature’s acquiescence in our construction of a statute. See, e.g., Angelsea Productions, Inc. v. Commission on Human Rights & Opportunities, 236 Conn. 681, 693, 674 A.2d 1300 (1996); Habetz v. Condon, 224 Conn. 231, 239 n.12, 618 A.2d 501 (1992); Farmers & Mechanics Savings Bank v. Garofalo, 219 Conn. 810, 817, 595 A.2d 341 (1991); Union Trust Co. v. Heggelund, 219 Conn. 620, 626-27, 594 A.2d 464 (1991); In re Jessica M., 217 Conn. 459, 472, 586 A.2d 597 (1991); State v. Marsala, 216 Conn. 150, 158, 579 A.2d 58 (1990); White v. Burns, 213 Conn. 307, 333-34, 567 A.2d 1195 (1990); Phelps Dodge Copper Products Co. v. Groppo, 204 Conn. 122, 134, 527 A.2d 672 (1987); Ralston Purina Co. v. Board of Tax Review, 203 Conn. 425, 439, 525 A.2d 91 (1987).

“In light of our role as surrogates for the legislature, proper respect for the separation of powers has led us to exercise prudence with respect to the overruling of cases that involve the construction of a statute. Once an appropriate interval to permit legislative reconsideration has passed without corrective legislative action, the inference of legislative acquiescence places a significant jurisprudential limitation on our own authority to reconsider the merits of our earlier decision. If . . . stare decisis is to continue to serve the cause of stability and certainty in the law — a condition indispensable to any well-ordered system of jurisprudence — a court should not overrule its earlier decisions unless the most cogent reasons and inescapable logic require it. [W.] Maltbie, [Connecticut Appellate Procedure (1957) § 226], This is especially true when the precedent involved concerns the inteipretation or construction of a statute. ... A change in the personnel of the court never furnishes reason to reopen a question of statutory interpretation. . . . Herald Publishing Co. v. Bill, 142 Conn. 53, 62, 111 A.2d 4 (1955); see Neal v. United States, 516 U.S. 284, 295, 116 S. Ct. 763, 133 L. Ed. 2d 709 (1996); Patterson v. McLean Credit Union, 491 U.S. 164, 172-73, 109 S. Ct 2363, 105 L. Ed. 2d 132 (1989); Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184, 196, 676 A.2d 831 (1996); General Electric Employees Federal Credit Union v. Zakrzewski, 235 Conn. 741, 744, 670 A.2d 274 (1996); see generally L. Marshall, ‘ “Let Congress Do It”: The Case for an Absolute Rule of Statutory Stare Decisis,’ 88 Mich. L. Rev. 177 (1989) (arguing that separation of powers justifies heightened rule of stare decisis for precedents involving statutory construction).” (Internal quotation marks omitted.) Conway v. Wilton, 238 Conn. 653, 681-84, 680 A.2d 242 (1996) (Peters, C. J., dissenting).

The present case does not present “the most cogent reasons”; id., 683; to overrule our prior interpretations of the accidental failure of suit statute, nor does “inescapable logic”; id.; require such a result. There is nothing bizarre or irrational about those interpretations. Compare Ferrigno v. Cromwell Development Associates, 244 Conn. 189, 202, 708 A.2d 1371 (1998) (overruling prior interpretation of General Statutes § 37-9 [3] because it created “bizarre conflict” between civil and criminal provisions of usury law). Moreover, there is no showing that those interpretations were of recent origin and had disregarded persuasive legislative history regarding the statute’s purpose. Compare Conway v. Wilton, supra, 238 Conn. 681 (overruling prior interpretation of General Statutes § 52-557Í [3], Recreational Land Use Act, as applied to municipalities). In addition, in the intervening years since Chichester, the legislature has twice amended § 52-592 (a) without addressing our long-standing interpretations of it; see Public Acts 1979, No. 79-267; Public Acts 1982, No. 82-160, § 251; raising the presumption of legislative approval of those interpretations. See, e.g., Hall v. Gilbert & Bennett Mfg. Co., 241 Conn. 282, 297-98, 695 A.2d 1051 (1997), and cases cited therein.

The most that can be said for the plaintiffs position, therefore, is that in 1902, when Chichester was decided, this court plausibly could have interpreted the accidental failure of suit statute as saving an action brought beyond the policy’s limitation period when a prior action commenced within that period had been non-suited, and when the provision containing the limitation period was mandated by statute. That is insufficient justification to sweep away the at least equally plausible interpretation that this court did adopt, twice, in 1902, and has reaffirmed repeatedly since, and which the legislature presumably has approved.

The judgment is affirmed.

In this opinion NORCOTT and KATZ, Js., concurred.

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

joins, dissenting. The majority, in affirming the trial court, brings this court’s jurisprudence back to the period of early English common law when the slightest procedural error would result in the dismissal of a plaintiffs complaint and be a bar to obtaining an adjudication on its merits. As a result of the majority’s decision today, any person insured under a fire insurance policy who (1) puts the insurer on notice of a claim, (2) files timely proof of loss for the claim, (3) files an action against the insurer within one year of the date of loss, as required by the time limitation provision statutorily mandated to be in the policy, and (4) suffers a nonsuit of his action as a result of an error generated by the trial court’s computer more than one year after the date of his loss, is not entitled to bring an identical action pursuant to the accidental failure of suit statute, General Statutes § 52-592 (a). In reaching that conclusion the majority misreads the 1902 case of Chichester v. New Hampshire Fire Ins. Co., 74 Conn. 510, 51 A. 545 (1902) (Chichester II), and more troubling, relies on other cases that do not support its holding.

The relevant facts are as follows. On November 6, 1992, within one year of the date of loss, the plaintiff, Joseph Bocchino, Jr., commenced an action against the defendant, Nationwide Mutual Fire Insurance Company, for proceeds allegedly owed the plaintiff pursuant to the fire insurance policy the defendant had issued him. The plaintiff was required to bring the action within one year because, pursuant to General Statutes §§ 38a-308 (a) and 38a-307, his policy had a one year limitation of suit provision.

Although the pleadings were closed and the case awaited a trial date, the plaintiffs action was dismissed by the trial court on June 24, 1994, under its dormancy program as a result of a computer generated error. On March 24, 1995, less than one year after his original action had been dismissed, the plaintiff commenced a new action against the defendant pursuant to § 52-592 (a). The substantive claims asserted by the plaintiff were identical to those contained in his original complaint. The attorney trial referee, before whom the case was tried, recommended judgment for the plaintiff in the amount of $28,336.45. The trial court rejected this recommendation and rendered judgment in favor of the defendant on the ground that the plaintiffs claim was hatred by the one year time limitation provision for instituting an action on the policy.

I begin my analysis of the effect of § 52-592 (a) on the time limitation provision statutorily mandated to be in all fire insurance policies by reviewing the history underlying savings statutes. Our statute, originally enacted by chapter XIV of the 1862 Public Acts, has, like other savings statutes, “its roots in the distant past . . . [of] the English Limitation Act of 1623 (21 Jac. 1, c. 16, § 4) ... .” Gaines v. New York, 215 N.Y. 533, 537, 109 N.E. 594 (1915). I agree with Justice Cardozo’s conclusion in Gaines, that “whatever verbal differences exist [between our savings statute and the English Limitation Act of 1623] the purpose and scope of [our savings statute is] identical in substance with its prototype, the English [Limitation] [A]ct of 1623.” Id., 539. Section 52-592 (a), like the New York savings statute and the English Limitation Act of 1623, was “designed to insure to the diligent suitor the right to a hearing in court till he reaches a judgment on the merits.” Id.; see, e.g., Isaac v. Mount Sinai Hospital, 210 Conn. 721, 733, 557 A.2d 116 (1989); Ross Realty Corp. v. Surkis, 163 Conn. 388, 393, 311 A.2d 74 (1972); Baker v. Baningoso, 134 Conn. 382, 387, 58 A.2d 5 (1948); Johnson v. Wheeler, 108 Conn. 484, 486, 143 A. 898 (1928); Johnston v. Sikes, 56 Conn. 589, 596 (Superior Court 1888).

Indeed, this precise point was made in the concurring opinion in Andrew Ansaldi Co. v. Planning & Zoning Commission, 207 Conn. 67, 70, 540 A.2d 59 (1988) (Shea, J., concurring). Justice Shea wrote: “Centuries ago the common law courts of England . . . insisted upon rigid adherence to the prescribed forms of action, resulting in the defeat of many suits for technical faults rather than upon their merits. Some of that ancient jurisprudence migrated to this country with the settlers and has affected the development of procedural law in this state. Beginning in the middle of the nineteenth century, however, 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.” (Emphasis added.) Id., 75-76.

Justice Shea’s interpretation of § 52-592 (a) is in accord with this court’s long-standing and principled view that “the policy of [our] law [is] to bring about a trial on the merits of a dispute whenever possible . . . .” Snow v. Calise, 174 Conn. 567, 574, 392 A.2d 440 (1978); see also Lechner v. Holmberg, 165 Conn. 152, 156, 328 A.2d 701 (1973) (“ ‘[d]ue process of law requires that the rights of no [person] shall be judicially determined without affording him a day in court and an opportunity to be heard’ ”); State ex rel. Kelman v. Schaffer, 161 Conn. 522, 526, 290 A.2d 327 (1971) (same); United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 383, 260 A.2d 596 (1969) (same); Benz v. Walker, 154 Conn. 74, 77, 221 A.2d 841 (1966) (same).

Most recently, this court reaffirmed this principle when it addressed whether General Statutes § 52-72 allows an amendment to correct a return date. Coppola v. Coppola, 243 Conn. 657, 707 A.2d 281 (1998). Justice Norcott, writing for a unanimous court, stated that our conclusion that a party could file an amendment to correct a return date “is consistent with our expressed policy preference 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.) Id., 665. Justice Norcott went on to explain that “[o]ur practice does not favor the termination of proceedings without a determination of the merits of the controversy where that can be brought about with due regard to necessary rules of procedure. . . . We [refuse] to permit the recurrence of the inequities inherent in eighteenth century common law that denied a plaintiffs cause of action if the pleadings were technically imperfect.” (Citation omitted; internal quotation marks omitted.) Id., 665-66.

Finally, this court consistently has held, like Justice Cardozo concluded in Gaines, that our savings statute’s “broad and liberal purpose is not to be frittered away by any narrow construction.” Gaines v. New York, supra, 215 N.Y. 539; see, e.g., Isaac v. Mount Sinai Hospital, supra, 210 Conn. 733 (“[w]e . . . decline to ‘fritter away’ the strong remedial purpose of our saving statute”); Ross Realty Corp. v. Surkis, supra, 163 Conn. 393 (very liberal construction given to savings statute); Baker v. Baningoso, supra, 134 Conn. 387 (same); Johnson v. Wheeler, supra, 108 Conn. 488 (same); Johnston v. Sikes, supra, 56 Conn. 596 (same).

With this background in mind, I focus on the language of § 52-592 (a) to determine whether the plaintiffs case falls within the letter of the savings statute. Section 52-592 (a) provides that, if a plaintiffs “action, commenced within the time limited by law, has failed one or more times to be tried on its merits . . . the plaintiff . . . may commence a new action . . . for the same cause at any time within one year after the determination of the original action . . . .” Clearly, the plaintiffs original action failed to be tried on its merits. Moreover, there is no dispute that the plaintiff filed an identical action within one year of the dismissal of his first action. Consequently, the only real issue for this court to address in this appeal is whether the one year limitation of suit provision in the plaintiffs fire insurance policy is “time limited by law” under § 52-592 (a).

I conclude that, although the one year period by which the plaintiff was required to institute his action was a provision in the insurance contract, it was still a limitation period required by law. General Statutes § 38a-307 provides in relevant part that the standard form of fire insurance policy shall include the contractual provision that any action be “commenced within twelve months next after inception of the loss” and General Statutes § 38a-308 (a) mandates that all policies of fire insurance “made, issued or delivered by any insurer or any agent or representative thereof, on any property in this state . . . [conform] ... to all provisions, stipulations, agreements and conditions” set forth in the standard policy of § 38a-307. Moreover, this court has made clear that the provisions of the standard fire insurance policy are required by law. See Hanover Ins. Co. v. Firemen’s Fund Ins. Co., 217 Conn. 340, 344-47, 586 A.2d 567 (1991) (even if insurance policy does not contain limitation of suit clause, insured still subject to one year limitation); State v. Biller, 190 Conn. 594, 613, 462 A.2d 987 (1983) (oath on proof of loss form required by statutory predecessor of §§ 38a-308 (a) and § 38a-307 “is one required by law” as necessary to sustain conviction pursuant to General Statutes § 53-368 for falsely certifying administration of oath); Covenant Ins. Co. v. Banks, 177 Conn. 273, 277, 413 A.2d 862 (1979) (appraisal clause legislatively mandated by statutory predecessor of §§ 38a-308 and 38a-307 to appear in fire insurance policy). Accordingly, the one year limitation of suit provision is a statutory limitation period and is “time limited by law” pursuant to § 52-592 (a).

Furthermore, in a majority of jurisdictions “that have adopted a standard form of insurance policy by statute, as [Connecticut] has, it has been held that these or other remedial statutes designed to prevent technical forfeitures under statutes of limitation also apply to the limitation period incorporated by statute into every insurance policy.” (Emphasis added.) Bollinger v. National Fire Ins. Co. of Hartford, Connecticut, 25 Cal. 2d 399, 408, 154 P.2d 399 (1944); see, e.g., Abele v. A. L. Dougherty Overseas, Inc., 192 F. Sup. 955, 956-57 (N.D. Ind. 1961); Lancashire Ins. Co. v. Stanley, 70 Ark. 1, 3, 62 S.W. 66 (1901); Hoagland v. Railway Express Agency, Inc., 75 So. 2d 822, 828 (Fla. 1954); Roth v. Northern Assurance Co. Ltd., 32 Ill. 2d 40, 48, 203 N.E.2d 415 (1964); Tracy v. Queen City Fire Ins. Co., 132 La. 610, 613-14, 61 So. 687 (1913); Hamilton v. Royal Ins. Co., 156 N.Y. 327, 336, 50 N.E. 863 (1898); Buchholz v. United States Fire Ins. Co., 183 Misc. 826, 828, 51 N.Y.S.2d 923 (1944), aff'd, 269 App. Div. 49, 53 N.Y.S.2d 608, appeal denied, 269 App. Div. 737, 54 N.Y.S.2d 701, appeal dismissed, 294 N.Y. 807, 62 N.E.2d 239 (1945); Carolina Transportation & Distributing Co. v. American Alliance Ins. Co., 214 N.C. 596, 598, 200 S.E. 411 (1939); Greulich v. Monnin, 142 Ohio St. 113, 116, 50 N.E.2d 310 (1943); George v. Connecticut Fire Ins. Co., 84 Okla. 172, 174, 201 P. 510 (1921); Hatley v. Truck Ins. Exchange, 261 Or. 606, 614, 494 P.2d 426 (1972); annot., 23 A.L.R. 97, 106-109 (1923). In each case, the courts have concluded that because the contractual limitation of suit provision is in effect a statutory limitation period, an insured’s right to bring an action on the policy is limited by law, and, therefore, is subject to the savings statute. Although the savings statutes from the majority of these jurisdictions contain slightly different language than § 52-592 (a),1 am persuaded that the reasoning of those cases applies to our interpretation of § 52-592 (a).

The majority concludes, however, that the limitation of suit provision is not “time limited by law.” According to the majority, it is compelled to reach this conclusion, thus denying the plaintiff a chance to have his case heard on its merits, because this court held in 1902 that § 38a-308’s predecessor was not “an otherwise applicable statute of limitations,” and because, in 1979, this court quoted the 1902 ruling at length in a case that was only tangentially related to the 1902 ruling. See Chichester II, supra, 74 Conn. 514; Monteiro v. American Horne Assurance Co., 177 Conn. 281, 283, 416 A.2d 1189 (1979).

After reviewing Chichester II and Monteiro, I conclude that both cases are inapposite to the present case because, unlike the plaintiff in this case, the plaintiffs in Chichester II and Monteiro failed to meet the prerequisites of § 52-592 (a) for commencing a new action on the same cause. To understand Chichester II, we must review Chichester v. New Hampshire Fire Ins. Co., 72 Conn. 707, 46 A. 151 (1900) (ChichesterI). In Chichester I, the plaintiff had brought an action within one year of his date of loss, which was nonsuited after he had introduced all of his evidence at trial on that action. The trial court granted the defendant’s motion for nonsuit because the plaintiff failed to make out a prima facie case as a result of his failure to prove “immediate notice” to the defendant after the fire, which, in addition to a contractual limitation period of one year for instituting an action, was a condition of the policy of insurance and an essential element of his case. Chichester v. New Hampshire Fire Ins. Co., 6 Conn. Supreme Court Records & Briefs, April Term, 1900, Record p. 15. The plaintiff then attempted in Chichester II to bring a second action against the defendant pursuant to chapter CXCIII of the 1895 Public Acts (currently codified at § 52-592 [a]), which this court held was barred as not falling within the provisions of the savings statute. Chichester II, supra, 74 Conn. 514. In other words, the plaintiff’s original action in Chichester I, unlike the plaintiffs original action in the present case, was tried on its merits and did not fall within the letter of § 52-592 (a).

The plaintiff in Monteiro, unlike the plaintiff in this case, commenced his action against the defendant more than one year after he had suffered his loss, thus failing to comply with his insurance policy’s one year limitation of suit provision. Monteiro v. American Home Assurance Co., supra, 177 Conn. 283. Consequently, the Monteiro court did not even address whether § 52-592 (a) extended the one year limitation period in the plaintiffs policy. Instead, the court determined whether the plaintiff was excused from performance of the contractual condition by virtue of his attorney’s tragic illness. Id., 285-86. The principal issue in the present case, therefore, whether § 52-592 (a) extends a contractual limitation period when that limitation period is required by law, has never been squarely decided by this court.

Even if the majority were correct that Chichester II holds what the majority claims it does, which it does not, I would overrule it. “The value of adhering to precedent is not an end in and of itself ... if the precedent reflects substantive injustice. Consistency must also serve a justice related end. B. Cardozo, The Nature of the Judicial Process (1921) p. 150 (favoring rejection of precedent when it has been found to be inconsistent with the sense of justice or with the social welfare). . . . [F]ar from being immune from considerations of justice, [the rule of stare decisis] must always be tested against the ends of justice more generally. C. Peters, [‘Foolish Consistency: On Equality, Integrity, and Justice in Stare Decisis,’ 105 Yale L.J. 2031, 2047 (1996)]. ... If law is to have a current relevance, courts must have and exert the capacity to change a rule of law when reason so requires. ... In re Stranger Creek & Tributaries in Stevens County, 77 Wash. 2d 649, 653, 466 P.2d 508 (1970). . . . Those doctrines only will eventually stand which bear the strictest examination and the test of experience. Barden v. Northern Pacific R. Co., 154 U.S. 288, 322, 14 S. Ct. 1030, 38 L. Ed. 992 (1894).” (Citations omitted; internal quotation marks omitted.) Conway v. Wilton, 238 Conn. 653, 659-60, 680 A.2d 242 (1996).

Reason requires this court to overrule Chichester II because that court’s construction of the interplay between § 38a-308 and § 52-592 (a) contravenes our long-standing liberal interpretation of the accidental failure of suit statute, and its long-standing policy of providing “errant parties with an opportunity for cases to be resolved on their merits rather than dismissed for some technical flaw.” Andrew Ansaldi Co. v. Planning & Zoning Commission, supra, 207 Conn. 75-76 (Shea, J., concurring). “It is the courts, the legal profession and the public generally, not just the plaintiffs, who are the losers when serious cases . . . fail to be resolved on their merits because of some procedural deficiency. . . . Where the procedural deficiency claimed to make such a result unavoidable follows from a construction of a statute not required by its language, wholly inconsistent with its legislative history, and unheralded by applicable precedent, the frustration of the principal objective of our judicial system, to resolve controversies on their merits, arises from a mere exaltation of form over substance.” (Citation omitted; internal quotation marks omitted.) Simko v. Zoning Board of Appeals, 206 Conn. 374, 391, 538 A.2d 202 (1988) (Shea, J., dissenting).

Furthermore, Chichester II should be overruled because adherence to it will lead to unjust results for all insured parties who, like the plaintiff (1) put their insurers on notice of claims, (2) file timely proof of loss for the claims, (3) file actions against the insurer within one year of the date of loss, and (4) suffer non-suits through no fault of their own. Simply put, it is manifestly unjust to forbid such persons from prosecuting new actions if the prosecution of the original action fulfilled the essential purpose of the policy’s limitation of suit provision. The essential purpose of the fire insurance policy’s limitation of suit provision is to “prevent delay in the determination of all questions of loss, and in part to enable the company to know in season whether a claim will be prosecuted.” Woodbury Savings Bank & Building Assn. v. Charter Oak Fire & Marine Ins. Co., 31 Conn. 517, 529 (1863). By invoking judicial aid less than one year after his date of loss, the plaintiff in the present case gave timely notice to the defendant that a claim would be prosecuted. Moreover, the defendant knew that the plaintiffs original action was dismissed merely because of a computer generated error. Under such circumstances, it defies justice for the majority to refuse to reverse Chichester II. See New York Central & Hudson River R. Co. v. Kinney, 260 U.S. 340, 346, 43 S. Ct. 122, 67 L. Ed. 294 (1922) (“when a defendant has had notice from the beginning that the plaintiff sets up and is trying to enforce a claim against it because of specified conduct ... a liberal rule should be applied”); Aetna Casualty & Surety Co. v. Murphy, 206 Conn. 409, 417, 538 A.2d 219 (1988) (where enforcement of contractual provision in insurance policy will operate as forfeiture of insured’s right without regard to his dutiful behavior, and insurer’s legitimate purpose in requiring prompt notification can be protected without forfeiture, “strict enforcement [of the contractual provision] is unwarranted”); Woodbury Savings Bank & Building Assn. v. Charter Oak Fire & Marine Ins. Co., supra, 529-30 (“manifestly unjust to allow” insurer to prevail in objection to insured’s failure to bring action within time allowed by contract when object of time limitation has been answered).

I would hold, therefore, that the remedial provisions of § 52-592 (a) apply to toll the running of the parties’ statutorily required contractual limitation period, and that the plaintiffs second action is not barred in this case.

Accordingly, I dissent.

       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, now Practice Book (1998 Rev.) § 65-1, and General Statutes § 51-199 (c).

       General Statutes § 52-592 provides in relevant 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 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 1 he plaintiff is dead and the action by law survives, his executor or administrator, may commence anew 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. . . .”

       General Statutes § 38a-308 (a) provides in relevant part: “No policy or contract of fire insurance shall be made, issued or delivered by any insurer or any agent or representative thereof, on any property in this state, unless it conforms as to all provisions, stipulations, agreements and conditions with the form of policy set forth in section 38a-307. . . . Such policy shall be clearly designated on the back of the form as ‘The Standard Fire Insurance Policy of the State of Connecticut’ . . . .”
      General Statutes § 38a-307, which sets forth the standard policy form, provides in relevant part: “Suit. No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity . . . unless commenced within twelve months next after inception of the loss. ...”

       Practice Book § 251, now Practice Book (1998 Rev.) § 14-3, provides: “If a party shall fail to prosecute an action with reasonable diligence, the court may, after hearing, on motion by any party to the action pursuant to Sec. 196, or on its own motion, render a judgment dismissing the action with costs. At least two weeks’ notice shall be required except in cases appearing on an assignment list for final adjudication. Judgment files shall not be drawn except where an appeal is taken or where any party so requests.
      “If a case is printed on a dormancy calendar pursuant to the dormancy program administered under the direction of the chief court administrator, and a motion for default for failure to plead is filed pursuant to See. 128, only those papers which close the pleadings by joining issues, or raise a special defense, may be filed by any party, unless the court otherwise orders.”

       The plaintiff attempts to distinguish Chichester on the grounds that, in contrast to the present case: (1) the first action of the plaintiff in Chichester had been nonsuited after the plaintiff had presented his evidence; and (2) that action had been nonsuited upon the request of the defendant — as opposed to the court’s own motion, pursuant to Practice Book § 251, now Practice Book (1998 Rev.) § 14-3, which led to the nonsuiting in the present case. This attempt to distinguish Chichester is unpersuasive, however, because these aspects of the procedural history in the plaintiff’s first action were immaterial to this court’s conclusion that the accidental failure of suit statute was not applicable. On the contrary, the only aspects of the procedural history of the prior case that entered into the court’s analysis were “the fact that [the plaintiff] brought an action upon the policy within twelve months after the fire, [and] that in th[at] action [the plaintiff] was nonsuited for reasons not touching the merits of his cause . . . .” Chichester v. New Hampshire Fire Ins. Co., supra, 74 Conn. 513. These same procedural characteristics are also the only material aspects of the plaintiff’s first action in the present case and, therefore, Chichester cannot be distinguished from the present case.

       The plaintiff also cites decisions from the courts of other states that, in applying their states’ accidental failure of suit statutes in analogous situations, have concluded that the statute applies to contractual limitations periods. The plaintiff does not claim, however, that those cases constitute a majority trend. Indeed, we note that one prominent insurance law commentator has stated: “Under certain state statutes, it has been held that where the plaintiff suffers a nonsuit, he may bring a new action within one year of such nonsuit, if the original action was timely. . . . The majority of courts have held that the filing of one suit, which is later dismissed, does

        not toll the time for action upon an insurance policy, and a later suit, filed after the contractual period has expired has been held too late.” (Emphasis added.) 20A J. Appleman & J. Appleman, Insurance Law and Practice (1980) § 11618, pp. 490-94, citing Vincent v. Mutual Reserve Fund Life Assn., supra, 74 Conn. 686-87, and Chichester v. New Hampshire Fire Ins. Co., supra, 74 Conn. 512-13, as Connecticut authority. Moreover, in our view, how other courts may have interpreted their states’ accidental failure of suit statutes is immaterial. Those interpretations do not, and cannot, affect the meaning of our statute, which we have articulated consistently and repeatedly for ninety-six years.

       The majority’s decision today does not surprise me because of this court’s three to two decision in Ruddock v. Burrowes, 243 Conn. 569, 576, 706 A.2d 967 (1998), a case decided this year — in which I was one of two dissenters— wherein the majority held that a disciplinary dismissal as the result of the conduct of a lawyer is not necessarily a “matter of form” that would permit a plaintiff to commence a new action as a matter of right pursuant to General Statutes § 52-592.

       General Statutes § 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 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.”

       The defendant paid to the plaintiff $12,337.59 for personal property loss, but refused to pay for the fire damage to the plaintiffs garage.

       General Statutes § 38a-308 (a) provides in relevant part: “No policy or contract of fire insurance shall be made, issued or delivered by any insurer or any agent or representative thereof, on any property in this state, unless it conforms as to all provisions, stipulations, agreements and conditions with the form of policy set forth in section 38a-307. . . .”
      General Statutes § 38a-307 provides in relevant part: “The standard form of fire insurance policy of the state of Connecticut, with permission to substitute for the word ‘Company’ a more accurate descriptive term of the type of insurer, shall be as follows . . .
      “Suit. No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity unless all the requirements of this policy shall have been complied with, and unless commenced within twelve months next after inception of the loss. ...”

       The record reveals that the plaintiffs claim for civil trial list, in which his attorney, pursuant to the dormancy program, certified that all the pleading's had been closed as to all the parties, was filed in the clerk’s office before the trial court dismissed the action.

       Public Acts 1862, c. XIV, provides in relevant part: “That if, in any action duly commenced within the time limited by law, and which may now be pending or hereafter brought, the writ fails of a sufficient service or return, by any unavoidable accident, or by any default or neglect of the officer to whom it is committed, or if the writ is abated, or the action otherwise avoided or defeated, by the death of any party thereto, or for any matter of form, or if, after a verdict for the plaintiff, the judgment is arrested, or if a judgment for the plaintiff is reversed on a motion in error, or writ of error, or where the plaintiff shall have mistaken his form of action and the suit shall fail for that cause, the plaintiff may commence a new action for the same cause at any time within one year after the abatement, or other determination of the original suit, or after the reversal of the judgment; and if the cause of action by law survives, his executor or administrator may commence such new action within said one year. . .

       The English Limitation Act of 1623 provided: “ ‘ [I]f in any the said actions or suits, judgment be given for the plaintiff, and the same be reversed by error, or a verdict pass for the plaintiff, and upon matter alleged in arrest of judgment, the judgment be given against the plaintiff, that he take nothing by his plaint, writ or bill; or if any of the said actions shall be brought by original, and the defendant therein be outlawed, and shall after reverse the outlawry; that in all such cases the party plaintiff, his heirs, executors or administrators, as the case shall require, may commence a new action or suit, from time to time, within a year after such judgment reversed, or such given against the plaintiff, or outlawry reversed, and not after.’ ” Gaines v. New York, 215 N.Y. 533, 537, 109 N.E. 594 (1915).

       The savings statutes in California, North Carolina and Oregon, for example, begin with the phrase: “If an action is commenced within the time prescribed therefor . . . .” (Emphasis added.) Bollinger v. National Fire Ins. Co. of Hartford, Connecticut, supra, 25 Cal. 2d 409; Carolina Transportation & Distributing Co. v. American Alliance Ins. Co., supra, 214 N.C. 598; Hatley v. Truck Ins. Exchange, supra, 261 Or. 613-14. Section 52-592
        (a) begins with the phrase: “If any action, commenced within the time limited by law, has failed (Emphasis added.)

       The plaintiff in Vincent v. Mutual Reserve Fund Assn., 74 Conn. 684, 51 A. 1066 (1902), which the majority mistakenly argues affirmed the holding in Chichester II, also commenced his action more than one year after he had suffered his loss. Moreover, the Vincent plaintiff, like the plaintiff in Monteiro, did not invoke the accidental failure of suit statute to preserve the untimely filed action.

       All the other cases the majority cites for support of its statement that the proposition of law set forth in Chichester II has been reaffirmed by our appeUate courts over the last twenty years are either inapposite or irrelevant to the present case.
      In Pintavalle v. Valkanos, 216 Conn. 412, 418-19, 581 A.2d 1050 (1990), this court held that § 52-592 (a) did not save a third action brought on the same cause because it had not been brought within one year of the dismissal of the first suit. The plaintiffs action in the present case was brought less than one year after his first action was dismissed. Marangio v. Shop Rite

        Supermarkets, Inc., 11 Conn. App. 156, 160-61, 525 A.2d 1389, cert. denied, 204 Conn. 809, 528 A.2d 1155 (1987), is not relevant for the same reason as Pintavalle.

      Moreover, in Beckenstein v. Potter & Carrier, Inc., 191 Conn. 150, 464 A.2d 18 (1983), the plaintiffs did not even invoice § 52-592 (a) to toll the time when their action had to be filed. Instead, the plaintiffs argued that the six year limitation on contract actions was tolled because one of the defendants had a continuing duty to repair, which extended the time. Id., 157. Finally, in Skibeck v. Avon, 24 Conn. 239, 243, 587 A.2d 166, cert. denied, 219 Conn. 912, 593 A.2d 138 (1991), the plaintiff’s action was not saved by § 52-592 (a) because “ ‘the egregious conduct of the plaintiffs case was never intended to be saved by [its] provisions,’ ” not because the limitation was not a limitation of law.

       Indeed, we did just that in Erickson v. Erickson, 246 Conn. 359, 372, 716 A.2d 92 (1998), a decision rendered this term, wherein Justice Borden, writing for a unanimous court that included Justice Katz, overruled a rule of law that had been reaffirmed in Connecticut Junior Republic v. Sharon Hospital, 188 Conn. 1, 448 A.2d 190 (1982). “[Pjrinciples of law which serve one generation well may, by reason of changing conditions, disserve a later one. . . . Experience can and often does demonstrate that a rule, once believed sound, needs modification to serve justice better.” (Internal quotation marks omitted.) Erickson v. Erickson, supra, 372. In overruling prior case law interpreting a nineteenth century statute, we previously had occasion to quote Justice Oliver Wendell Holmes: “ ‘It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persiste from blind imitation of the past.’ O. Holmes, ‘The Path of the Law,’ 10 Harv. L. Rev. 457, 469 (1897).” Brunswick v. Inland Wetlands Commission, 222 Conn. 541, 554-55, 610 A.2d 1260 (1992). I can only conclude that, based upon Erickson, wherein two members of the majority in this case had no difficulty in overruling a 1982 decision that no longer served justice, the persistence of those two justices in following the 1902 case of Chichester II (as they interpret Chichester II) is not based solely on precedent. Rather, I must conclude that those justices believe that § 52-592 (a) should not save a cause of action that was timely filed within the contractual limitation period required by law but was dismissed after the expiration of the one year period as a result of a court computer error.

       Likewise, the majority’s decision today exalts form over substance. See Gaines v. New York, supra, 215 N.Y. 539 (“[i]f the protection of the statute is to be denied to [the plaintiff], it ought to be clearly shown that his case, though within the letter of the statute, is not within its reason”).