author: Callahan, J.

text:
    Patricia O. Ecker, Administratrix (Estate of Robert W. Ecker) v. Town of West Hartford et al.
    (12971)
    Peters, C. J., Shea, Callahan, Spallone and Norcott, Js.
    Argued May 6
    decision released September 8, 1987

      Allan B. Taylor,, with whom were Frederick W. Danforth, Jr., and, on the brief, Marjorie Wilder, corporation counsel, for the appellants (named defendant et al.).

      Theodore I. Koskojf, with whom were Bernard Pitterman and, on the brief, Carey B. Reilly and Joan C. Harrington, for the appellee (plaintiff).
   Callahan, J.

The plaintiff Patricia O. Ecker, as administratrix of the estate of her husband Robert W. Ecker, brought this wrongful death action pursuant to General Statutes § 52-555 for injuries her deceased husband received when he was struck by a wooden canopy which fell from a Caldor building. The defendants include: (1) Henry Porter, doing business as Henry Porter Associates, the owner and lessor of the land and building; (2) Consolidated Engineers and Constructors, Inc., the contractors who designed, constructed and installed the canopy; (3) Charles McCarthy, individually and as the building inspector of the town of West Hartford, who issued the certifícate of occupancy for the Caldor building; and (4) the town of West Hartford, which employed Charles McCarthy. Caldor, Inc., filed an intervening complaint against the plaintiff and the defendants for monies it had paid in accordance with the provisions of the Connecticut Workers’ Compensation Act.

After a jury verdict which was rendered in favor of the plaintiff in the amount of $1,156,000 against McCarthy as building inspector and the town of West Hartford (hereinafter the defendants), the trial court rendered a final judgment thereon. The defendants took a timely appeal to the Appellate Court, and the appeal was transferred to this court pursuant to Practice Book § 4023. On appeal, the defendants claim the trial court erred: (1) in refusing to dismiss this case for lack of subject matter jurisdiction; (2) in submitting the issue of pain and suffering to the jury; (3) in its charge to the jury regarding the duties of a building inspector and the application of governmental immunity; and (4) in allowing Caldor, Inc., the intervening plaintiff, four peremptory challenges. We find error as to the defendants’ first claim and need not address the other claims raised.

The jury could reasonably have found the following facts. On February 11, 1981, the plaintiff’s decedent, while working as a shipping clerk for Caldor, Inc., in its department store located at 983 New Britain Avenue, West Hartford, was injured when a wooden canopy pulled away from the store wall in the area of the loading dock and fell on him. He subsequently was taken to Hartford Hospital while in a coma, where he died the next day.

In the summer of 1973, renovations had been made to the Caldor building under a building permit issued by McCarthy, the chief building inspector for the town of West Hartford, to Henry Porter, doing business as Henry Porter Associates, the owner and lessor of the building at 983 New Britain Avenue. The permit had been signed by Edward Dombrowski, also a town building inspector, after the plans for the renovations had been reviewed and revised by Joseph Callahan, another town bulding inspector. Consolidated Engineers and Constructors, Inc. (Consolidated), was the general contractor in charge of the renovations.

During the course of the renovations, the West Hartford building department had made both general and specific inspections of the construction site on at least thirty-five recorded occasions, as required by the Connecticut State Building Code §§ 111.1 and 111.11. The inspections were conducted by Joseph Callahan, Thomas Kelley, Donald Soccoli and Thomas Bascetta. In addition, McCarthy did a general walk-through inspection on October 9,1973, to check for any “obvious glaring faults.”

On October 30 and 31, 1973, further inspections of the building were conducted by Callahan and Soccoli for the purpose of determining whether a certificate of occupancy should be issued. Both inspectors had noted a number of items that had to be remedied, but both gave their approval to McCarthy to issue a temporary certificate of occupancy on October 31, 1973. McCarthy had also conducted a general inspection of the premises from his car by driving around the perimeter of the building, “primarily looking for a finished grade.” Upon completion of this inspection and having conferred with the other inspectors, McCarthy issued the temporary certificate of occupancy on the same day and the store opened to the public on November 1,1973. The only other inspections of the building were done in late November, 1973, by Callahan, Kelley and Soccoli merely to check if the unfinished items listed on the temporary certificate of occupancy had been completed. Thereafter, McCarthy issued the permanent certificate of occupancy on November 30,1973. From November 30, 1973, until February 11, 1981, when the plaintiffs decedent was injured, the building department had not received complaints about the Caldor facility and had not conducted a general inspection of it.

The wooden canopy was unquestionably in violation of §§ 315.1 and 315.3 of the Connecticut State Building Code in that no permit had been issued, it had been constructed of wood, not metal, and it had no vertical supports or braces. Despite the fact that neither the initial nor the final and revised plans for the renovations showed the canopy, it was erected over the loading dock some time prior to the opening of the store on November 1, 1973.

This action was filed by the plaintiff on February 17, 1982. An amended complaint was filed on July 27,1983, which the municipal defendants answered on October 17, 1983, alleging only the special defense of governmental immunity for McCarthy. On February 13, 1986, the first day of trial, the defendants filed a request to amend their answer to raise by way of special defense, for the first time, the three year time limitation contained within General Statutes § 52-555. The trial court denied the request on the grounds that it was untimely and substantially prejudicial to the plaintiff. On February 19, 1986, the defendants filed a motion to reconsider the denial of the request to amend their answer which was also denied by the trial court on February 20, 1986. Thereafter, on March 7, 1986, the defendants moved for a directed verdict, pursuant to Practice Book § 821, on the ground that, inter alia, the action was time barred under § 52-555. The trial court denied this motion. On March 26,1986, two days after the jury rendered a verdict in favor of the plaintiff, the defendants renewed this claim by way of a motion to dismiss, a motion to set aside the verdict and a motion for judgment notwithstanding the verdict. On the same day, the trial court denied the motions and rendered judgment upon the jury verdict.

The principal issue in this appeal is whether a trial court has jurisdiction over a wrongful death action brought more than “three years from the date of the act or omission complained of” as required by § 52-555. The defendants claim that § 52-555 created a new statutory cause of action that did not exist at common law in Connecticut, and thus, must be strictly construed and cannot be extended or enlarged by judicial construction. The defendants further argue that because the statute creates the right of action, the time limitation contained therein is a limitation upon the right itself, and as such, is jurisdictional in nature and cannot be waived. Accordingly, the defendants claim the court lacked jurisdiction over this action which was not brought within the three year period of limitation set forth in the statute. We agree with this contention.

I

Recently in the case of Ladd v. Douglas Trucking Co., 203 Conn. 187,191-92, 523 A.2d 1301 (1987), this court reiterated the one hundred and thirty-one year adherence by the courts of this state to the almost unanimously held principle of law, as first proclaimed by Lord Ellenborough in the case of Baker v. Bolton, 1 Camp. 493, 170 Eng. Rep. 1033 (K.B. 1808), that there is no civil right of action at common law for damages resulting from the death of a human being. See Grody v. Tulin, 170 Conn. 443, 448, 365 A.2d 1076 (1976); Foran v. Carangelo, 153 Conn. 356, 359, 216 A.2d 638 (1966); Floyd v. Fruit Industries, Inc., 144 Conn. 659, 668-69, 136 A.2d 918 (1957); Baker v. Baningoso, 134 Conn. 382, 385, 58 A.2d 5 (1948); Lucier v. Hittleman, 125 Conn. 635, 636, 7 A.2d 647 (1939); Willoughby v. New Haven, 123 Conn. 446, 454, 197 A. 85 (1937); Flynn v. New York, N.H. & H. R. Co., 111 Conn. 196, 200, 149 A. 682 (1930), aff'd, 283 U.S. 53, 51 S. Ct. 357, 75 L. Ed. 837 (1931); Korb v. Bridgeport Gas Light Co., 91 Conn. 395, 397, 99 A. 1048 (1917); DeMartino v. Siemon, 90 Conn. 527, 528, 97 A. 765 (1916); Kling v. Torello, 87 Conn. 301, 306, 87 A. 987 (1913); Radezky v. Sargent & Co., 77 Conn. 110,112, 58 A. 709 (1904); Broughel v. Southern New England Telephone Co., 72 Conn. 617, 620, 45 A. 435 (1900); Goodsell v. Hartford & New Haven R.R. Co., 33 Conn. 51, 55 (1865); Murphy v. New York & New Haven R.R. Co., 30 Conn. 184,188 (1861); Connecticut Mutual Life Ins. Co. v. New York & New Haven R.R. Co., 25 Conn. 265, 273 (1856); Isaac v. Mount Sinai Hospital, 3 Conn. App. 598, 601-602, 490 A.2d 1024, cert. denied, 196 Conn. 807, 494 A.2d 904 (1985); Shattuck v. Gulliver, 40 Conn. Sup. 95, 97, 481 A.2d 1110 (1984); Leland v. Chawla, 39 Conn. Sup. 8, 10, 467 A.2d 439 (1983); Cofrancesco v. Smith, 29 Conn. Sup. 139, 141-42, 275 A.2d 608 (1971); Gorke v. Le Clerc, 23 Conn. Sup. 256, 257-58, 181 A.2d 448 (1962); Perlstein v. Westport Sanitarium Co., 11 Conn. Sup. 117,119 (1942); see also D. Wright & J. Fitzgerald, Connecticut Law of Torts (2d Ed.) § 171 (e), p. 367. With only a few exceptions, courts in America have almost universally accepted, and continue to accept, “the rule that a civil action for wrongful death was not recognized at common law, and that no such cause of action may be maintained except under the terms and authority of a statute.” 61 A.L.R.3d 906, 909, and authorities cited therein, 909-10 n.3, and Sup. 59. For recent federal court cases applying state law, see Garland v. Herrin, 724 F.2d 16,20 (2d Cir. 1983) (New York law); Fisk v. United States, 657 F.2d 167,170 (7th Cir. 1981) (Indiana law); Aspinall v. McDonnell Douglas Corporation, 625 F.2d 325, 327 (9th Cir. 1980) (California law); Theberge v. Transportation Systems, 611 F. Sup. 368, 371 (D.N.H. 1984) (New Hampshire law); Jaeger v. Raymark Industries, Inc., 610 F. Sup. 784, 788 (E.D. Wis. 1985) (Wisconsin law); Miers v. Central Mine Equipment Co., 604 F. Sup. 502, 508 (D. Neb. 1985) (Nebraska law); Bethel v. Janis 597 F. Sup. 56, 59 (D.S.D. 1984) (South Dakota law); Ritter v. Aspen Skiing Corporation, 519 F. Sup. 907-908 (D. Colo. 1981) (Colorado law); Higgins v. Washington Metropolitan Area Transit Authority, 507 F. Sup. 984, 986 (D.D.C. 1981) (District of Columbia law); Holzsager v. Warburton, 452 F. Sup. 1267,1270 (D.N.J. 1978) (New Jersey law); Matter of Tonty, 52 Bankr. 18, 19 (W.D. Pa. 1985). For recent state court decisions, see Greater Southeast Community Hospital v. Williams, 482 A.2d 394, 396 (D.C. App. 1984); Everett v. Trunnell, 105 Idaho 787, 789, 673 P.2d 387 (1983); Andis v. Hawkins, 489 N.E.2d 78, 81 (Ind. App. 1986); Ascani v. Hughes,470 So. 2d 207, 209 (La. App. 1985); Stiffelman v. Abrams, 655 S.W.2d 522, 536 (Mo. 1983); Johnson v. Morios River Electric Co-op, Inc., 687 P.2d 668, 670 (Mont. 1984); In re Estate of Infant Fontaine, 128 N.H. 695, 698, 519 A.2d 227 (1986); Young v. Robertshaw Controls Co., 104 App. Div. 2d 84, 88, 481 N.Y.S.2d 891 (1984); Taylor v. Black & Decker Mfg. Co., 21 Ohio App. 3d 186,188, 486 N.E.2d 1173 (1984); Gleason v. Oklahoma City, 666 P.2d 786, 788-89 (Okla. App. 1983); Taylor v. Parr, 678 S.W.2d 527, 529 (Tex. App. 1984); Weiss v. Regent Properties, Ltd., 118 Wis. 2d 225, 230, 346 N.W.2d 766 (1984); see also 25A C.J.S. 582-84 n.69, Death § 13, and Sup. 77; 22 Am. Jur. 2d 606 n.3, Death § 1. Although this rule has been subject to some criticism over its long history, this court is not prepared to hold contrary to the long line of Connecticut cases and the overwhelming weight of authority throughout the country.

The plaintiff cites the four line opinion in the case of Cross v. Guthery, 2 Root (Conn.) 90 (1774), in support of her position that a wrongful death action at common law existed in Connecticut. Although the court, in that case, upheld a jury verdict in favor of the plaintiff, who sought damages for medical expenditures he incurred and the deprivation of his wife’s company; id., 91; the Cross case has been rejected by every Connecticut decision which has since addressed the issue. Therefore we view the case of Connecticut Mutual Life Ins. Co. v. New York & New Haven R.R. Co., supra, which overruled Cross, not as having made a change in Connecticut law, but rather, as having recognized that the Cross court was in error. See Mickel v. New England Coal & Coke Co., 132 Conn. 671, 676, 47 A.2d 187 (1946), and authorities cited therein.

The plaintiff also relies on Moragne v. States Marine Lines, Inc., 398 U.S. 375, 90 S. Ct. 1772, 26 L. Ed. 2d 339 (1970), and the three state court decisions of Gaudette v. Webb, 362 Mass. 60, 284 N.E.2d 222 (1972), Wilbon v. D. F. Bast Co., 73 Ill. 2d 58, 382 N.E.2d 784 (1978), and Haakanson v. Wakefield, 600 P.2d 1087 (Alaska 1979), which were decided in reliance on Moragne, to support her position that a wrongful death action existed at common law. We do not find these cases persuasive.

The Moragne case involved a wrongful death action brought by the wife of a seaman, who was killed in Florida state territorial waters. The Florida wrongful death statute did not encompass the unseaworthiness of a vessel as a basis of liability, whereas federal maritime law provided only for a wrongful death action where the death had occurred on the high seas, and not within the three mile area designated as state territorial waters. Thus, in light of this gap that existed between federal maritime law and Florida’s death statute, the Moragne court addressed the limited issue of “whether The Harrisburg, 119 U.S. 199, 7 S. Ct. 140, 30 L. Ed. 358 [1886], in which this court held in 1886 that maritime law does not afford a cause of action for wrongful death, should any longer be regarded as acceptable law.” Moragne v. States Marine Lines, Inc., supra, 375-76. Although Justice Harlan did examine and criticize the common law rationales for denying a recovery for death; id., 381-88; he did not go so far as to hold that a wrongful death action existed or exists today under nonmaritime common law. In fact, in addressing the nonrecovery at common law issue, Justice Harlan stated: “regardless of the viability of the rule in 1886 as applied to American land-based affairs, it is difficult to discern an adequate reason for its extension to admiralty, a system of law then already differentiated in many respects from the common law.” Id., 381. Justice Harlan acknowledged that “[m]aritime law had always, in this country as in England, been a thing apart from the commmon law.” Id., 386. He also acknowledged that recovery for wrongful death had become the general rule in American law, and its denial the exception solely by way of “the work of the legislatures.” Id., 393. Thus, the Moragne decision only extends the general maritime law to allow the bringing of a wrongful death action where the death was brought about by the unseaworthiness of a vessel and occurred within state territorial waters. Id., 401-402, 405-406; see also Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 215-16,106 S. Ct. 2485, 91 L. Ed. 2d 174 (1986); Complaint of Patton-Tully Transportation Co. 797 F.2d 206, 212 (5th Cir. 1986); Casaceli v. Martech International, Inc., 774 F.2d 1322,1328 (5th Cir. 1985); Evich v. Connelly, 759 F.2d 1432, 1433 (9th Cir. 1985).

The plaintiff cites decisions from only three states that have held that, on the basis of Moragne, a right of action for wrongful death existed at common law. See Haakanson v. Wakefield, supra; Wilbon v. D. F. Bast Co., supra; Gaudette v. Webb, supra. The Ohio Court of Appeals, on the other hand, has specifically refused to follow the Moragne and Gaudette rationale and has acknowledged the long standing recognition that no wrongful death action existed at common law. See Taylor v. Black & Decker Mfg. Co., supra, 188.

On the basis of the long line of Connecticut cases and the overwhelming weight of authority cited above, we hold that no action for wrongful death existed at common law or exists today in Connecticut except as otherwise provided by the legislature.

II

Given the above holding, the issue now becomes: “What is the nature of the three year time limitation contained within General Statutes § 52-555?” In pertinent part General Statutes § 52-555 provides: “no action shall be brought to recover such damages and disbursements but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of.” The defendants argue that this time limitation is a substantive element of the right itself, and thus is jurisdictional and cannot be waived. We agree.

In deciding whether a time limitation contained within a statute is subject to waiver, we must determine whether the limitation is substantive or procedural in nature. See Moore v. McNamara, 201 Conn. 16, 22-23, 513 A.2d 660 (1986); Orticelli v. Powers, 197 Conn. 9, 15, 495 A.2d 1023 (1985). “ ‘A statute of limitations is generally considered to be procedural, especially where the statute contains only a limitation as to time with respect to a right of action and does not itself create the right of action. Jones Destruction, Inc. v. Upjohn, 161 Conn. 191, 195, 286 A.2d 308 (1971).’ Collucci v. Sears, Roebuck & Co., 585 F. Sup. 529, 532 (D. Conn. 1984).” Moore v. McNamara, supra, 22. Where the limitation is deemed procedural and personal it is subject to being waived unless it is specifically pleaded because the limitation is considered merely to act as a bar to a remedy otherwise available. See Moore v. McNamara, supra; Orticelli v. Powers, supra; L. G. DeFelice & Son, Inc. v. Wethersfield, 167 Conn. 509, 511, 356 A.2d 144 (1975); Hillier v. East Hartford, 167 Conn. 100, 106, 355 A.2d 1 (1974).

Where, however, a specific time limitation is contained within a statute that creates a right of action that did not exist at common law, then the remedy exists only during the prescribed period and not thereafter. See Moore v. McNamara, supra, 22-23; Orticelli v. Powers, supra; L. G. DeFelice & Son, Inc. v. Wethers-field, supra; Hillier v. East Hartford, supra; Diamond National Corporation v. Dwelle, 164 Conn. 540, 547, 325 A.2d 259 (1973). In such cases, the time limitation is not to be treated as an ordinary statute of limitation, but rather is a limitation on the liability itself, and not of the remedy alone. Vecchio v. Sewer Authority, 176 Conn. 497, 504-505, 408 A.2d 254 (1979); see American Masons’ Supply Co. v. F. W. Brown Co., 174 Conn. 219, 224, 384 A.2d 378 (1978); Hillier v. East Hartford, supra; DeMartino v. Siemon, supra, 528-29; Cofrancesco v. Smith, supra, 142; 22 Am. Jur. 2d 633, Death § 35. The courts of Connecticut have repeatedly held that, under such circumstances, the time limitation is a substantive and jurisdictional prerequisite, which may be raised at any time, even by the court sua sponte, and may not be waived. See Moore v. McNamara, supra, 23; Orticelli v. Powers, supra; American Masons’ Supply Co. v. F. W. Brown Co., supra; L. G. DeFelice & Son, Inc. v. Wethersfield, supra; Diamond National Corporation v. Dwelle, supra; Wilbur v. Mount Sinai Medical Center, 3 Conn. App. 284, 288, 487 A.2d 568 (1985).

Although this court has not previously addressed the jurisdictional nature of the time limitations contained within § 52-555, the lower courts of Connecticut have held the time limitation to be jurisdictional. See Cofrancesco v. Smith, supra, 142, 145; Isaac v. Mount Sinai Hospital, 3 Conn. App. 598, 602, 490 A.2d 1024, cert. denied, 196 Conn. 807,494 A.2d 904 (1985). Other jurisdictions have also held the statutory time limitation contained within their respective wrongful death statutes to be a precondition of the right to bring a wrongful death action that may not be waived. See Knauer v. Johns-Manville Corporation, 638 F. Sup. 1369,1375-76 (D. Md. 1986); Theberge v. Transportation Systems, 611 F. Sup. 368, 371 (D.N.H. 1984); Price v. Litton Systems, Inc., 607 F. Sup. 30, 32 (S.D. Miss. 1984); Phillips v. Elrod, 135 Ill. App. 3d 70, 74, 478 N.E.2d 1078 (1985);Martin v. Rinck, 491 N.E.2d 556, 559 (Ind. App. 1986); Honda Motor Co., Ltd. v. Parks, 485 N.E.2d 644, 646 (Ind. App. 1985); Sabol v. Pekoc, 148 Ohio St. 545, 554, 76 N.E.2d 84 (1947).

Accordingly, we hold that the three year limitation contained within § 52-555 is a jurisdictional prerequisite which cannot be waived and which must be met in order to maintain an action under § 52-555. Since § 52-555 creates liability where none formerly existed, the statute must be strictly construed and we are not at liberty to extend, modify or enlarge its scope through the mechanics of construction. See Ahern v. New Haven, 190 Conn. 77, 82, 459 A.2d 118 (1983); Edmundson v. Rivera, 169 Conn. 630, 633, 363 A.2d 1031 (1975).

Ill

In light of our holding above, we now address the issue of the applicability of article first, § 10, of the Connecticut constitution which was properly raised by the plaintiff, by way of a preliminary counter statement of issues filed on April 24, 1986, in accordance with Practice Book § 4013 (a) (1). The plaintiff argues that because the three year repose portion of “General Statutes § 52-555 abolishes those causes of action for negligence resulting in death which accrue more than three years after the act or omission complained of,” it denies her access to the courts of this state and thus violates article first, § 10. We disagree.

The constitution of Connecticut, article first, § 10, provides: “All courts shall be open, and every person for an injury done to him in his person, property or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.” Article first, § 10, has been viewed as a limitation upon the legislature’s ability to abolish common law and statutory rights that existed in 1818, when article first, § 10, was adopted, and which were “incorporated in that provision by virtue of being established by law as rights the breach of which precipitates a recognized injury . . . .” Gentile v. Altermatt, 169 Conn. 267, 286, 363 A.2d 1 (1975), appeal dismissed, 423 U.S. 1041, 96 S. Ct. 763, 46 L. Ed. 2d 631 (1976); see also Daily v. New Britain Machine Co., 200 Conn. 562, 585, 512 A.2d 893 (1986); Warner v. Leslie-Elliott Constructors, Inc., 194 Conn. 129, 133 n.3, 479 A.2d 231 (1984). Therefore, where a right existed at common law or by statute in 1818 and became incorporated into the Connecticut constitution by the adoption of article first, § 10, the legislature may restrict or abolish such incorporated right only where it provides a reasonable alternative to the enforcement of such right. See Daily v. New Britain Machine Co., supra; Gentile v. Altermatt, supra, citing Kluger v. White, 281 So. 2d 1, 4-5 (Fla. 1973); 16A C.J.S. 509-10, Constitutional Law § 710; V. Reuben & V. Williams, “The Constitutionality of Basic Protection,” 1 Conn. L. Rev. 44, 46 n.13 (1968); see also Overland Construction Co. v. Sirmons, 369 So. 2d 572, 573 (Fla. 1979); Saylor v. Hall, 497 S.W.2d 218, 221-24 (Ky. 1973).

The plaintiff’s article first, § 10 argument is based upon the premise that an action for wrongful death existed in 1818, and thus cannot be legislatively restricted or abolished without a reasonable alternative remedy being provided. We have already held above that an action for damages for wrongful death did not exist at common law or by statute in Connecticut in 1818. The Connecticut legislature first adopted a wrongful death statute in 1851 that was limited to deaths caused by railroad companies. See Public Acts 1851, c. 43, § 2. It was not until 1877, that the Connecticut legislature allowed an action for wrongful death against anyone “legally at fault for such injuries.” See Public Acts 1877, c. 78. Thereafter, through a series of amendments and recodifications, including Public Acts 1957, No. 532, which added the three year repose period, and Public Acts 1969, No. 401, which extended the one year period of limitation to two years from the date when the injury is first sustained or discovered, Connecticut’s wrongful death statute has evolved to its present state under § 52-555. Therefore, § 52-555 creates a remedy where none previously existed, and the addition of the three year repose period does no more than redefine the time within which that remedy may be sought.

The plaintiff cites in support of her argument five decisions of other state courts that have held that statutes of limitation that begin to run before the occurrence of any injury are violative of similar “access to courts” provisions. Those cases were cited by Chief Justice Speziale in his concurring opinion in McDonald v. Haynes Medical Laboratory, Inc., 192 Conn. 327, 335, 471 A.2d 646 (1984). Upon a careful review of those cases, we do not find them controlling. In fact, four of those cases support this court’s conclusion. In each of those cases, the court declared the repose period contained within the respective state statute violative of the state’s “access to courts” provision. This was done only upon an initial finding by each court that the causes of action set forth in the statute containing the repose period, either (1) existed at common law and prior to the adoption of the state’s “access to courts” provision, or (2) were recognized as valid causes of action under state law prior to the adoption of the repose period. See Jackson v. Mannesmann Demag Corporation, 435 So. 2d 725 (Ala. 1983); Lankford v. Sullivan, Long & Hagerty, 416 So. 2d 996 (Ala. 1982); Overland Construction Co. v. Sirmons, supra; Saylor v. Hall, supra. It must also be noted that none of these four cases or the fifth case of Diamond v. E. R. Squibb & Sons, Inc., 397 So. 2d 671 (Fla. 1981), cited by the plaintiff, involved a repose period contained within a wrongful death statute. Thus, we do not find these cases persuasive of the plaintiff’s position.

We hold, therefore, that § 52-555 does not violate article first, § 10, because the repose period does not abrogate common law or statutory rights of action that existed in 1818 when that provision of the Connecticut constitution was first adopted.

IV

The plaintiff further argues that § 52-555 violates the equal protection clause of article first, § 20, of the Connecticut constitution by establishing various classifications without a rational basis. The classes identified are (1) persons killed fewer than three years after the act or omission complained of, and (2) persons killed more than three years after the act or omission complained of.

We begin by noting that “ ‘[t]he equal protection provisions of the federal and state constitutions have the same meaning and limitations.’ ” Daily v. New Britain Machine Co., supra, 577; see also Keogh v. Bridgeport, 187 Conn. 53, 66, 444 A.2d 225 (1982); Caldor’s, Inc. v. Bedding Barn, Inc., 177 Conn. 304, 314, 417 A.2d 343 (1979); Miller v. Heffernan, 173 Conn. 506, 516-17, 378 A.2d 572 (1977), appeal dismissed, 434 U.S. 1057, 98 S. Ct. 1226, 55 L. Ed. 2d 758 (1978). One who challenges the constitutionality of a statute bears the heavy burden of overcoming the presumption of its constitutional validity and of establishing the statute’s invalidity beyond a reasonable doubt. See State v. Thompson, 197 Conn. 67, 77, 495 A.2d 1054 (1985); Peck v. Jacquemin, 196 Conn. 53, 64, 491 A.2d 1043 (1985); Eielson v. Parker, 179 Conn. 552, 557, 427 A.2d 814 (1980); Engle v. Personnel Appeal Board, 175 Conn. 127, 134, 394 A.2d 731 (1978).

“When a statute is challenged on equal protection grounds . . . the reviewing court must first determine the standard by which the challenged statute’s constitutional validity will be determined.” Ryszkiewicz v. New Britain, 193 Conn 589, 596, 479 A.2d 793 (1984). “ ‘When a statutory classification impinges upon an inherently suspect class or affects a fundamental personal right, the statute is subject to strict scrutiny and is justified only by a compelling state interest.’ ” State Management Assn. of Connecticut, Inc. v. O’Neill, 204 Conn. 746, 750, 529 A.2d 1276 (1987); Keogh v. Bridgeport, supra, 66; Frazier v. Manson, 176 Conn. 638, 645, 410 A.2d 475 (1979); see Dunn v. Blumstein, 405 U.S. 330, 335-42, 92 S. Ct. 995, 31 L. Ed. 2d 274 (1972). Otherwise, a statute will stand if the classification bears a reasonable relation to a legitimate state interest. State Management Assn, of Connecticut, Inc. v. O’Neill, supra; Ryszkiewicz v. New Britain, supra, 597; Keogh v. Bridgeport, supra; see, e.g., G. D. Searle & Co. v. Cohn, 455 U.S. 404, 408, 102 S. Ct. 1137, 71 L. Ed. 2d 250 (1982); Eielson v. Parker, supra, 563.

“It cannot seriously be argued that a statutory entitlement to sue for wrongful death of another is itself a ‘fundamental’ or ‘constitutional right.’ ” Parham v. Hughes, 441 U.S. 347, 358 n.12, 99 S. Ct. 1742, 60 L. Ed. 2d 269 (1979); see also Everett v. Trunnell, 105 Idaho 787, 790, 673 P.2d 387 (1983) (applying the rational basis test to an equal protection challenge to the wrongful death statute of Idaho). Nor does the fact that a statute of limitation distinguishes between personal injury claims and wrongful death actions by extending the discovery of injury rule to the former and not the latter, implicate any suspect classes or fundamental rights. Thus the distinction at issue here need only be rationally related to a legitimate government interest to be upheld against an equal protection challenge. See United States Department of Agriculture v. Moreno, 413 U.S. 528, 534, 93 S. Ct. 2821, 37 L. Ed. 2d 782 (1973); Ciccarelli v. Carey Canadian Mines, Ltd., 757 F.2d 548, 555-56 (3d Cir. 1985), citing Wayne v. Tennessee Valley Authority, 730 F.2d 392, 404 (5th Cir. 1984); Braswell v. Flintkote Mines, Ltd., 723 F.2d 527, 531 (7th Cir. 1983); Cardieux v. International Telephone & Telegraph Corporation, 593 F.2d 142,144-45 (1st Cir. 1979); Houk v. Furman, 613 F. Sup. 1022, 1035-36 (D. Me. 1985).

The equal protection clauses of the United States and Connecticut constitutions do not deny to the states the power to treat different classes of persons in different ways. McDonald v. Board of Election Commissioners, 394 U.S. 802, 808-809, 88 S. Ct. 1404, 22 L. Ed. 2d 739 (1969); Daily v. New Britain Machine Co., supra, 577; Gentile v. Altermatt, supra, 295. The equal protection clause does deny the state the power to legislate that different treatment be accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the object of the statute. A classification “ ‘must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation . . . .’ ” Daily v. New Britain Machine Co., supra, 578; Gentile v. Altermatt, supra, 295-96, citing Reed v. Reed, 404 U.S. 71, 75-76, 92 S. Ct. 251, 30 L. Ed. 2d 225 (1971).

The enactment of “ [statutes limiting the time within which an action may be brought are the result of a legitimate legislative determination which balances the rights and duties of competing groups.” Barwick v. Celotex Corporation, 736 F.2d 946, 956 (4th Cir. 1984). A statute of limitation or of repose is designed to (1) prevent the unexpected enforcement of stale and fraudulent claims by allowing persons after the lapse of a reasonable time, to plan their affairs with a reasonable degree of certainty, free from the disruptive burden of protracted and unknown potential liability, and (2) to aid in the search for truth that may be impaired by the loss of evidence, whether by death or disappearance of witnesses, fading memories, disappearance of documents or otherwise. See United States v. Kubrick, 444 U.S. 111, 117, 100 S. Ct. 352, 62 L. Ed. 2d 259 (1979); United States v. Marion, 404 U.S. 307, 322 n.14, 92 S. Ct. 455, 30 L. Ed. 2d 468 (1971); State v. Coleman, 202 Conn. 86, 91-92, 519 A.2d 1201 (1987); Daily v. New Britain Machine Co., supra, 582-83; Vilcinskas v. Sears, Roebuck & Co., 144 Conn. 170,174-75,127 A.2d 814 (1956); Lametta v. Connecticut Light & Power Co., 139 Conn. 218, 221, 92 A.2d 731 (1952); Anderson v. Bridgeport, 134 Conn. 260, 266-67, 56 A.2d 650 (1947). Repose periods that have made a distinction between wrongful death actions and personal injury actions have also been held to be rationally related to the additional state interest of promoting the prompt settlement of the economic and legal affairs of the deceased. Ciccarelli v. Carey Canadian Mines, Ltd., supra, 556; Cardieux v. International Telephone & Telegraph Corporation, supra, 145. Clearly, the three year period in question is rationally related to the accomplishment of all the legitimate state interests set forth above.

We cannot conclude that § 52-555 is unconstitutional under article first, § 20, merely because the three year period it contains is unfair at times. Statutes of limitation find their justification in necessity and convenience rather than logic. Chase Securities Corporation v. Donaldson, 325 U.S. 304, 314, 65 S. Ct. 1137, 89 L. Ed. 1628, reh. denied, 325 U.S. 896, 65 S. Ct. 1561, 89 L. Ed. 2006 (1945). There is no reason, constitutional or otherwise, which prevents the legislature from establishing a three year time period that runs from the date of the act or omission complained of, as was done here, even though at that date no person had sustained damage and therefore no cause of action had come into existence. See McDonald v. Haynes Medical Laboratory, Inc., supra, 330; Daily v. New Britain Machine Co., supra, 582; Prokolkin v. General Motors Corporation, 170 Conn. 289, 297, 365 A.2d 1180 (1976); Vilcinskas v. Sears, Roebuck & Co., supra, 174. It is not the function of the court to alter a legislative policy merely because it produces unfair results. McDonald v. Haynes Medical Laboratory, Inc., supra, 334; Penfield v. Jarvis, 175 Conn. 463, 474-75, 399 A.2d 1280 (1978); 16A C.J.S. 109, Constitutional Law § 271. Individual rights and remedies must at times and of necessity give way to the interests and needs of society. Gentile v. Altermatt, supra, 308.

The plaintiff further argues that the three year repose period in question, when compared to the periods of limitation for death actions under General Statutes § 52-577a (ten years or longer for product liability claims), § 52-584a (seven years for action against an architect or professional engineer), §§ 52-577b and 52-577c (unlimited period of time for agent orange and hazardous chemical claims provided the discovery requirements are met), § 52-576 (six years on a contract action), and § 42a-2-725 (four years on a breach of warranty action), is unconstitutional because it creates an additional, more restrictive class of wrongful death actions without a “fair, reasonable, or rational reason.” We disagree.

It must first be noted that the plaintiff has cited no authority from any jurisdiction wherein a wrongful death statute has been declared unconstitutional, as violative of the equal protection clause of either the state or the federal constitution, for any reason. Upon reviewing the statutes cited by the plaintiff, this court finds obvious differences that would justify the different treatment afforded by the legislature. We cannot say, for instance, that the inherent nature of the instrumentalities (agent orange, hazardous chemicals, deficient architectural and engineering designs) that are recognized by these statutes as the cause of the death, is an insufficient, unfair or irrational reason for warranting a different repose or period applicable to each. Additionally, this court does not read General Statutes §§ 52-576 and 42a-2-725 as providing longer periods of time within which a wrongful death action resulting from a breach of contract or of a warranty may be maintained. The language of § 52-555 does not specifically restrict its application to deaths resulting merely from the negligence of another.

This court concludes that the plaintiff has failed to demonstrate, beyond a reasonable doubt, that General Statutes § 52-555 is in violation of article first, § 20, of the Connecticut constitution.

There is error, the judgment is set aside and the case is remanded to the trial court with direction to render judgment dismissing the action.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 52-555. actions for injuries resulting in death. In any action surviving to or brought by an executor or administrator for injuries resulting in death, whether instantaneous or otherwise, such executor or administrator may recover from the party legally at fault for such injuries just damages together with the cost of reasonably necessary medical, hospital and nursing services, and including funeral expenses, provided no action shall be brought to recover such damages and disbursements but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of.”

       The jury also found in favor of the defendant Consolidated Engineers and Constructors, Inc. No appeal has been filed in that regard. The plaintiff’s claims against Henry Porter, doing business as Henry Porter Associates, were resolved outside of court. Additionally, the plaintiff was precluded from pursuing any common law claims against Caldor, Inc., the employer of the plaintiff’s decedent, because of the exclusivity provisions of the Connecticut Workers’ Compensation Act. See General Statutes § 31-284 (a).

       “[Practice Book] Sec. 4023. —in general
      “The supreme court may transfer to itself a cause in the appellate court. Except for any matter brought pursuant to its original jurisdiction under the constitution, the supreme court may transfer a cause or class of causes from itself, including any cause or class of causes pending on July 1,1983, to the appellate court. The court to which a cause is transferred has jurisdiction.
      “There shall be no fee on such transfer, but an appellant other than the state or a party for whom fees, costs and security have been waived pursuant to Sec. 4016 shall within twenty days file in the trial court a substituted recognizance in the amount of $500. The chief clerk of the supreme court shall notify all parties and the clerk of the trial court that the appeal has been transferred. A case so transferred shall be entered upon the docket of the court to which it has been transferred and the chief clerk shall require the parties to take such steps as may be necessary to make the appeal conform to the rules of the court to which it has been transferred.
      “Upon the transfer of an appeal, the time within which the briefs or other documents must be filed shall be governed by the rules of the court to which the case has been transferred, except that such time limit for the document next to be filed shall not be less than thirty days from issuance of the notice of transfer.”

       The wooden canopy was attached to the wall of the building over the loading dock area to protect employees and merchandise from bad weather during the unloading of trucks. The canopy measured twenty-four feet in length with a four foot overhang and weighed approximately 2100 pounds.

       “[Connecticut State Building Code §] 111.1 preliminary inspection: Before issuing a permit, the building official shall examine or cause to be examined all buildings, structures and sites for which an application has been filed for a permit to construct, enlarge, alter, repair, remove, demolish or change the use thereof; and he shall maintain a record of all such examinations and inspections and of all violations of the Basic Code.”
      “[Connecticut State Building Code §] 111.11 construction inspection: The building official shall inspect all work performed under the provisions of the Basic Code and make continuous special inspections when so required by the Code. The permit holder or his agent shall notify the building official when the work is ready for inspection, giving not less than twenty-four hour notice.

       In addition to his recorded visit, McCarthy testified that he made additional general visits or inspections on six to eight other occasions where he did not record them. He did not testify that any of these occurred after October 31, 1973.

       “[Connecticut State Building Code §] 315.0 awnings and canopies.
      “[§] 315.1 permit: A permit shall be obtained from the building official for the erection, repair or replacement of any fixed awning, canopy or hood except as provided in section 315.11, and for any retractable awning located at the first story level and extending over the public street or over any portion of a court or yard beside a building serving as a passage from a required exitway or exitway discharge to a public street.”

       “[Connecticut State Building Code §] 315.3 canopies. Canopies shall be constructed of a metal framework, with an approved covering, attached to the building at the inner end and supported at the outer end by not more than two (2) stanchions with braces anchored in an approved manner and placed not less than two (2) feet in from the curb line. The horizontal position of the framework shall be not less than eight (8) feet nor more than twelve (12) feet above the sidewalk and the clearance between the covering or valance and the sidewalk shall be not less than seven (7) feet. The width of canopies shall not exceed eight (8) feet.”

       Daniel Harrison, Jeffrey O’Hara and Mark A. Uccello were employees of Caldor, Inc., at the time of the incident and each testified that the canopy existed on the building prior to the store opening to the public on November 1, 1973.

       “[Practice Book] Sec. 321. —reservation OF DECISION ON motion FOR DIRECTED VERDICT
      “Whenever a motion for a directed verdict made at any time after the close of the plaintiffs case in chief is denied or for any reason is not granted, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion. The defendant may offer evidence in the event the motion is not granted, without having reserved the right to do so and to the same extent as if the motion had not been made. After the acceptance of a verdict and within the time stated in Sec. 320 for filing a motion to set a verdict aside, a party who has moved for a directed verdict may move to have the verdict and any judgment rendered thereon set aside and have judgment rendered in accordance with his motion for a directed verdict; or if a verdict was not returned such party may move for judgment in accordance with his motion for a directed verdict within the aforesaid time after the jury have been discharged from consideration of the case. If a verdict was returned the court may allow the judgment to stand or may set the verdict aside and either order a new trial or direct the entry of judgment as if the requested verdict had been directed. If no verdict was returned the court may direct the entry of judgment as if the requested verdict had been directed or may order a new trial.”

       “In the early case of Cross v. Guthery, 2 Root (Conn.) 90 (1794), this court upheld a verdict in favor of the plaintiff husband who had sought damages for loss of the service, company and eonsortship of his deceased wife and also for his expenses in a malpractice action based upon the breach of a contract he had made with the defendant physician to perform breast surgery upon the wife of the plaintiff with requisite skill and care.” Ladd v. Douglas Trucking Co., 203 Conn. 187, 192 n.3, 523 A.2d 1301 (1987). Although the case involved the death of the plaintiffs wife, the action appears to have sounded in contract. Therefore we do not read the Cross case as having clearly established that a wrongful death action existed at common law in Connecticut.

       It must also be noted that the plaintiff, under her equal protection analysis, infra, cites in her brief three Connecticut trial court decisions that allegedly have held similar statutes of repose unconstitutional as contrary to article first, § 20, of the Connecticut constitution. One of these cases, however, McDonald v. Haynes Medical Laboratory, Inc., Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 19805 (February 14, 1985), also held that General Statutes § 52-555 did not violate article first, § 10, because an action for wrongful death did not exist at common law. The plaintiff failed to address this case under her article first, § 10 analysis.

       The application of the rational basis test is further warranted based upon the fact that the alleged classifications and disparate treatment asserted here result from the inherent nature of the statute of repose. In a recent equal protection challenge to the repose period contained in General Statutes § 52-577a (a), we stated: “The relevant inquiry is whether the classification and disparate treatment inherent in the statute of repose legislation bears a rational relationship to a legitimate state end and is based on reasons related to the accomplishment of that goal. McDonald v. Board of Election Commissioners, 394 U.S. 802, 808-809, 89 S. Ct. 1404, 22 L. Ed. 2d 739 (1969); Gentile v. Altermatt, 169 Conn. 267, 295, 363 A.2d 1 (1975), appeal dismissed, 423 U.S. 1041, 96 S. Ct. 763, 46 L. Ed. 2d 631 (1976).” Daily v. New Britain Machine Co., 200 Conn. 562, 577, 512 A.2d 893 (1986); see also Schafer v. Aspen Skiing Corporation, 742 F.2d 580, 583 (10th Cir. 1984).

       The plaintiff cites a number of cases from other jurisdictions which have held statutes of repose unconstitutional on equal protection grounds. Since none of the cases cited decided the constitutionality of a statute of repose contained in a wrongful death statute, we do not find any of these cases germane. In fact, all of the cases involved state statutes that shielded certain groups of individuals involved with the design and construction of improvements upon realty after a period of time from the completion of the project. The statutes were .held to violate equal protection clauses of the state and federal constitutions, not because of the periods of limitation contained therein, but rather, on the ground that the statutes did not equally apply the shield to groups similarly situated such as the realty owners, occupiers or possessors.

       “[General Statutes] Sec. 52-577a. limitation of action based on product liability claim, (a) No product liability claim as defined in section 52-572m shall be brought but within three years from the date when the injury, death or property damage is first sustained or discovered or in the exercise of reasonable care should have been discovered except that, subject to subsections (c) and (d), no such action may be brought against any party nor may any party be impleaded pursuant to subsection (b) later than ten years from the date that the party last parted with possession or control of the product.
      “(b) In any such action a product seller may implead any third party who is or may be liable for all or part of the plaintiffs claim, if such third party defendant is served with the third party complaint within one year from the date the cause of action brought under subsection (a) of this section is returned to court.
      “(c) The ten-year limitation provided for in subsection (a) shall not apply to any product liability claim brought by a claimant who is not entitled to compensation under chapter 568, provided the claimant can prove that the harm occurred during the useful safe life of the product. In determining whether a product’s useful safe life has expired, the trier of fact may consider among other factors: (1) The effect on the product of wear and tear or deterioration from natural causes; (2) the effect of climatic and other local conditions in which the product was used; (3) the policy of the user and similar users as to repairs, renewals and replacements; (4) representations, instructions and warnings made by the product seller about the useful safe life of the product; and (5) any modification or alteration of the product by a user or third party.
      “(d) The ten-year limitation provided for in subsection (a) shall be extended pursuant to the terms of any express written warranty that the product can be used for a period longer than ten years, and shall not preclude any action against a product seller who intentionally misrepresents a product or fraudulently conceals information about it, provided the misrepresentation or fraudulent concealment was the proximate cause of harm of the claimant.
      “(e) The definitions contained in section 52-572m shall apply to this section.
      “(f) The provisions of this section shall apply to all product liability claims brought on or after October 1, 1979.”

       [General Statutes] Sec. 52-584a. actions against architect or professional engineer. No action or arbitration, whether in contract, in tort, or otherwise, (1) to recover damages (A) for any deficiency in the design, planning, contract administration, supervision, observation of construction or construction of an improvement to real property; (B) for injury to property, real or personal, arising out of any such deficiency; (C) for injury to the person or for wrongful death arising out of any such deficiency, or (2) for contribution or indemnity which is brought as a result of any such claim for damages shall be brought against any architect or professional engineer performing or furnishing the design, planning, supervision or observation of construction or construction of such improvement more than seven years after substantial completion of such improvement.
      “(b) Notwithstanding the provisions of subsection (a) of this section, in the case of such an injury to property or the person or such an injury causing wrongful death, which injury occurred during the seventh year after such substantial completion, an action'in tort to recover damages for such an injury or wrongful death may be brought within one year after the date on which such injury occurred, irrespective of the date of death, but in no event may such an action be brought more than eight years after the sub-' stantial completion of construction of such an improvement.
      “(c) For purposes of subsections (a) and (b) of this section, an improvement to real property shall be considered substantially complete when (1) it is first used by the owner or tenant therof or (2) it is first available for use after having been completed in accordance with the contract or agreement covering the improvement, including any agreed changes to the contract or agreement, whichever occurs first.
      “(d) The limitation prescribed by this section shall not be asserted by way of defense by any person in actual possession or the control, as owner, tenant or otherwise, of such an improvement at the time any deficiency in such an improvement constitutes the proximate cause of the injury or death for which it is proposed to bring action.”

       “[General Statutes] Sec. 52-577b. limitation of action for damages CAUSED BY CONTACT WITH OR EXPOSURE TO PHENOXY HERBICIDES. Notwithstanding the provisions of sections 52-577 and 52-577a, an action to recover damages for personal injury caused by contact with or exposure to phenoxy herbicides while serving as a member of the armed forces of the United States in Indo-China from January 1,1962, through March 29, 1973, may be commenced within two years from the date of discovery of such injury, or within two years from the date when, through the exercise of reasonable diligence, the cause of such injury should have been discovered, whichever is later.”
      “[General Statutes] Sec. 52-577c. limitation of action for damages caused by exposure to a hazardous chemical substance or mixture or hazardous pollutant, (a) For the purposes of this section: (1) ‘Environmental’ means any surface water, ground water, drinking water supply, land surface or subsurface strata or ambient air within the state or under the jurisdiction of the state; (2) ‘exposure’ means any contact, ingestion, inhalation or assimilation, including irradiation; (3) ‘hazardous chemical substance or mixture’ means any chemical substance or mixture for which there is a federal standard, including any law, requirement, tolerance, prohibition, action level or similar legal authority adopted by an agency pursuant to federal law, including any such standard or legal authority adopted by a state or local government pursuant to federal law, generally intended to prevent, reduce or mitigate the risk of a disease or class or type of diseases to an individual or individuals resulting from exposure to such chemical substance or mixture; (4) ‘hazardous pollutant’ means any designated, specified or referenced chemical considered to be a ‘hazardous substance’ under Section 101 (14) of the Comprehensive Environmental Response, Compensation, and Liabilty Act, 42 U.S.C. 9601 (14); (5) ‘release’ means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping or disposing into the environment.
      “(b) Notwithstanding the provisions of sections 52-577 and 52-577a, no action to recover damages for personal injury or property damage caused by exposure to a hazardous chemical substance or mixture or hazardous pollutant released into the environment shall be brought but within two years from the date when the injury or damage complained of is discovered or in the exercise of reasonable care should have been discovered.
      “(c) The provisions of subsection (b) of this section shall not apply to an action brought against (1) any municipal waterworks system established and operated under chapter 102 or any special act, (2) any regional water authority established under any general statute or special act, or (3) any water company as defined in section 16-1.”

       “[General Statutes] Sec. 52-576. actions foe account or on simple or IMPLIED contracts, (a) No action for an account, or on any simple or implied contract, or on any contract in writing, shall be brought but within six years after the right of action accrues, except as provided in subsection (b) of this section.
      “(b) Any person legally incapable of bringing any such action at the accruing of the right of action may sue at any time within three years after becoming legally capable of bringing the action.
      “(c) The provisions of this section shall not apply to actions upon judgments of any court of the United States or of any court of any state within the United States, or to any cause of action governed by article 2 of title 42a.”

       “[General Statutes] Sec. 42a-2-725. statute of limitations in contracts for sale. (1) An action for breach of any contract for sale must be commenced within four years after the cause of action has accrued. By the original agreement the parties may reduce the period of limitation to not less than one year but may not extend it.
      “(2) A cause of action accrues when the breach occurs, regardless of the aggrieved party’s lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the bre.ach must await the time of such performance the cause of action accrues when the breach is or should have been discovered.

        “(3) Where an action commenced within the time limited by subsection (1) is so terminated as to leave available a remedy by another action for the same breach such other action may be commenced after the expiration of the time limited and within six months after the termination of the first action unless the termination resulted from voluntary discontinuance or from dismissal for failure or neglect to prosecute.
      “(4) This section does not alter the law on tolling of the statute of limitations nor does it apply to causes of action which have accrued before October 1, 1961.”


source: Caselaw Access Project

author: Peters, C. J.

license: Public Domain

text:
    Carter L. Beach et al. v. Middlesex Mutual Assurance Company
    (13130)
    Peters, C. J., Shea, Callahan, Covello, and Hull, Js.
    Argued September 30
    decision released November 10, 1987

      Thomas W. Witherington, for the appellant (defendant).

      William G. Rhines, for the appellees (plaintiffs).
   Peters, C. J.

The principal issue in this appeal is whether there is latent ambiguity in the term “collapse” in a homeowner insurance policy. The plaintiffs, Carter Beach and Mary Lawton Beach, filed a complaint seeking damages from the defendant, Middle-sex Mutual Assurance Company, for an alleged “collapse” within the terms of the insurance policy issued to them by the defendant. The defendant denied that a collapse had occurred, claiming instead that the damage to the plaintiffs’ home was due solely to the “settlement of earth movements,” a type of loss excluded under the policy.

An attorney state trial referee, after a hearing, recommended judgment for the plaintiffs in the amount of $26,607.31. The trial court adopted that recommendation and accordingly rendered judgment for the plaintiffs. The defendant’s appeal challenges both the construction of its insurance policy and the calculation of damages. We find error in part on the latter issue.

The uncontested findings of the trial referee reveal the following facts. The plaintiffs, Carter and Mary Lawton Beach, own a home located on a steep slope next to Candlewood Lake in New Milford. On a visit to the property in February, 1976, Carter Beach noticed a crack in the north foundation wall of the building. In response to timely notification of a claim of an insured loss, the defendant insurer promptly sent its claims adjuster, Robert Keaney, to inspect the crack and the ensuing damages. The adjuster noted not only the crack but also a separation between the top of the foundation wall and the “plate” or bottom of the building wall. By letter dated March 17,1976, the adjuster advised the plaintiffs that the insurance company had denied coverage for their claim “due to the fact [that] settlement was the cause of the damage.” The insurance contract expressly excluded coverage for damages arising from “settling, cracking, shrinkage, bulging or expansion.”

The crack in the north foundation wall continued to widen, and by May of 1976 had reached a width of approximately nine inches. In addition, wooden support beams on top of the foundation wall had pulled apart and the concrete floor of the patio adjacent to the north side of the house had cracked and fallen in. Concerned over this deteriorating state of affairs, Carter Beach requested a site visit by the defendant’s engineer, but was told that coverage would still be denied because no “collapse” of his home had occurred.

In July of 1976, the plaintiffs began to arrange for reconstruction of their home. A building contractor, Kenneth Lathrop, viewed the premises and later testified that the foundation wall had tipped over into the basement from the top and was no longer supporting the house. Because the house never actually caved in, the plaintiffs continued in occupancy during the period in which Lathrop undertook the needed structural repairs. Despite the nonoccurrence of a sudden catastrophe, the trial referee heard and found credible the testimony of a number of witnesses that the house would have caved in had the plaintiffs not acted to repair the damage. The trial referee expressly found that “[g]iven the state of the structure, eventually the house would have fallen into the cellar.” The referee went on to conclude that “the foundation in the Plaintiffs’ house cracked; that the foundation failed structurally, and that the function of the foundation, both as a support structure for the house and a retaining wall, had become materially impaired, constituting a collapse.”

The trial court rendered judgment in accordance with the report of the trial referee. The court articulated its reasons as follows: “It [the referee’s report] was accepted because we found it to be sound, comprehensive and logical both factually and legally, including the recommendations: (i) that a ‘collapse’ in the sense of a material impairment of the basic structure of a building was included within the coverage of the insurance policy involved in this action; and (ii) that the structure in question was in imminent danger of falling over, both of which are adopted by the undersigned.”

The defendant claims that the trial court erred in: (1) defining a “collapse” within the policy to mean a “material impairment of the basic structure of a building”; and (2) calculating damages to include the cost of replacing the plaintiffs’ septic tank system and the cost of various “preventive” measures undertaken by the building contractor. We find error in part on the latter issue.

I

The defendant first urges us to find error in the trial court’s construction of the term “collapse” in the insurance policy. If the language of the policy is clear and unambiguous, its terms will be given their ordinary and natural meaning. Horak v. Middlesex Mutual Assurance Co., 181 Conn. 614, 616, 436 A.2d 783 (1980); Weingarten v. Allstate Ins. Co., 169 Conn. 502, 509-10, 363 A.2d 1055 (1975). If, to the contrary, insurance coverage is defined in terms that are ambiguous, such ambiguity is, in accordance with standard rules of construction, resolved against the insurance company. “Where the terms of the policy are of doubtful meaning, the construction most favorable to the insured will be adopted.” LaBonte v. Federal Mutual Ins. Co., 159 Conn. 252, 256, 268 A.2d 663 (1970); see also Griswold v. Union Labor Life Ins. Co., 186 Conn. 507, 514, 442 A.2d 920 (1982); Simses v. North American Co. for Life & Health Ins., 175 Conn. 77, 84-85, 394 A.2d 710 (1978). The defendant conceded, at oral argument, that if its policy contains a relevant ambiguity, it cannot hope to overturn the trial court’s conclusion assigning it liability for the plaintiffs’ structural damage.

The precise language that we must construe is as follows: “This policy does not insure against loss . . . [u]nder Coverages A and B . . . 1. by . . . settling, cracking, shrinkage, bulging or expansion of pavements, patios, foundations, walls, floors, roofs or ceilings . . . unless . . . collapse of a building . . . not otherwise excluded ensues, then this policy shall cover only such ensuing loss.” In the defendant’s view, the term “collapse” in this policy unambiguously contemplates a sudden and complete falling in of a structure. This argument comes to us in two versions, neither of which we find persuasive.

First, the defendant claims that the standard dictionary definition of “collapse” on its face unambiguously connotes a sudden and complete catastrophe. A “collapse” is there defined as “a breakdown in vital energy, strength, or stamina: complete sudden enervation: sudden loss of accustomed abilities . . . an abnormal falling together of the walls of an organ . . . . ” Webster, Third New International Dictionary. This definition does not definitively support the defendant’s narrow reading. Although “collapse” encompasses a catastrophic breakdown, as the defendant argues, it also includes a breakdown or loss of structural strength, as the plaintiffs maintain. If the defendant wished to rely on a single facial meaning of the term “collapse” as used in its policy, it had the opportunity expressly to define the term to provide for the limited usage it now claims to have intended. See, e.g., Nida v. State Farm Fire & Casualty Co., 454 So. 2d 328, 334 (La. App. 1984). As presently drafted, “collapse” is not on its face unambiguous.

Second, the defendant claims that its interpretation unambiguously finds support in the policy as a whole. A narrow interpretation, it argues, is the only one consistent with the terms of the clause excluding liability for loss by “settling, cracking, shrinkage, bulging or expansion.” According to the defendant, the terms of the exclusionary clause modify and inform the meaning of “collapse” and necessarily narrow the purview of “collapse” to casualty of a sudden and cataclysmic nature. While we agree that the defendant’s reading of the relationship between the terms of the exclusionary clause and the meaning of “collapse” is a plausible one, an alternate reading is equally reasonable, and that is sufficient to defeat the defendant’s claim of error. As the plaintiffs contend, the policy may reasonably be read to exclude loss related to “settling, cracking, shrinkage, bulging or expansion,” only so long as “collapse” does not ensue. Nowhere does the policy express a clear unambiguous intent to exclude coverage for a catastrophe that subsequently develops out of a loss that appeared, at its inception, to fall within the rubric of “settling, cracking, shrinkage, bulging or expansion.” On the contrary, the disputed policy provision covers a loss for “collapse” which, not otherwise being excluded, “ensues.” To “ensue” means “to follow as a chance, likely, or necessary consequence: result . . . to follow in chronological succession.’’Webster, Third New International Dictionary. By its reference to a “collapse” that “ensues,” the policy in this case can reasonably be understood to have contemplated coverage for a “collapse” that follows consequentially from excluded activity. Read in its entirety, therefore, the defendant’s policy does not unambiguously limit its liability to a “collapse” of a sudden and catastrophic nature.

The result that we reach finds support in the reasoning of other courts. Although the judicial decisions elsewhere are divided, the more persuasive authorities hold that the term “collapse” is sufficiently ambiguous to include coverage for any substantial impairment of the structural integrity of a building. See, e.g., Auto Owners Ins. Co. v. Allen, 362 So. 2d 176,177-78 (Fla. App. Nationwide Mutual Fire Ins. Co. v. Tomlin, 181 Ga. App. 413, 416, 352 S.E.2d 612 (1986); Rogers v. Maryland Casualty Co., 252 Iowa 1096, 1102, 109 N.W.2d 435 (1961); Government Employees Ins. Co. v. DeJames, 256 Md. 717, 724, 261 A.2d 747 (1970); Vormelker v. Oleksinski, 40 Mich. App. 618, 632, 199 N.W.2d 287 (1972); Morton v. Travelers Indemnity Co., 171 Neb. 433, 449, 106 N.W.2d 710 (1960); Morton v. Great American Ins. Co., 77 N.M. 35, 38-39, 419 P.2d 239 (1966); Employers Mutual Casualty Co. v. Nelson, 361 S.W.2d 704, 709 (Tex. 1962); Thornewell v. Indiana Lumbermens Mutual Ins. Co., 33 Wis. 2d 344, 349, 147 N.W.2d 317 (1967). The cases to the contrary, which hold that “collapse” unmistakably connotes a sudden falling in, loss of shape, or flattening into a mass of rubble, have come to be in the distinct minority. See, e.g., Higgins v. Connecticut Fire Ins. Co., 163 Colo. 292, 295-96, 430 P.2d 479 (1967); Eaglestein v. Pacific National Fire Ins. Co., 377 S.W.2d 540, 545 (Mo. App. 1964); Graffeo v. United States Fidelity & Guaranty Co., 20 App. Div. 2d 643, 644, 246 N.Y.S.2d 258 (1964); Olmstead v. Lumbermens Mutual Ins. Co., 22 Ohio St. 2d 212, 216, 259 N.E.2d 123 (1970).

The defendant’s appeal, on this issue, challenges only the definition to be accorded to the term “collapse” in its insurance policy. Having determined that the trial court was correct in its conclusion that this term includes a substantial impairment of the structural integrity of a building, we need only note that the trial referee found, as a matter of fact, that the plaintiffs had proven such impairment of their house. This uncontested finding warrants a judgment holding the defendant liable even though no actual caving-in occurred and the structure was not rendered completely uninhabitable. See Auto Owners Ins. Co. v. Allen, supra, 177 n.1.

II

The defendant next claims error in the trial court’s calculation of damages. This claim has two parts. According to the defendant, the plaintiffs have failed to demonstrate a causal connection between the structural impairment of their house and (1) their replacement of the septic tank system, or (2) their installation of drains incidental to the repair and replacement of damaged landscaping, driveway, parking areas and sidewalks. We agree with the defendant’s claim insofar as it pertains to the septic tank system.

The plaintiff Carter Beach provided the only evidence concerning the factual link between the collapse of the foundation wall of the plaintiffs’ building and the need for the installation of a new septic tank system. The defendant has not challenged Beach’s credentials, as a licensed professional engineer, to render an expert opinion on the issue of causality. What is at issue is the fact of causality itself. On direct examination, Beach testified that he “realized something was wrong with the septic tank” before he noticed the crack in the foundation wall. He had started to repair the septic tank before he became aware of the crack in the wall, but later “made the assumption” that the problems were related. Under cross-examination, Beach admitted he had “no hard evidence” of a relationship other than mere coincidence. Relying exclusively on this testimony for evidence of a causal relationship, the trial referee awarded the plaintiffs $3696.66 in damages for the cost of a new septic tank system.

Beach’s testimony, even if fully credited, falls short of establishing the necessary degree of causation in this case. Although an expert witness is not required to express an opinion with absolute certainty, he or she must at least speak in terms of the probable and not merely the possible. Healy v. White, 173 Conn. 438,443, 378 A.2d 540 (1977). In his testimony, Beach candidly revealed that he had only “assumed” the existence of a causal relationship. Nothing in the record either confirms or rebuts this assumption. In the absence of proof of causation in fact, the plaintiffs were not entitled to recover damages for the cost of replacing their septic tank system. Cf. Boehm v. Kish, 201 Conn. 385, 517 A.2d 624 (1986).

The defendant also challenges the sufficiency of evidence underlying the award of $1350 for expenses incurred in the reconstruction process. The gist of its claim is that the installation of certain drains and other construction items incidental to the rebuilding of the retaining wall were optional or preventive measures not necessitated by the collapse. The undisputed facts belie such an assertion. Carter Beach testified that the drain and retaining wall work was ordinary and standard construction trade practice. On the basis of this competent evidence, the referee was justified in finding the work to be causally related to the loss and the trial court appropriately confirmed this finding.

There is error in part and the case is remanded to the trial court with direction to modify the judgment so as to reduce by $3696.66 the amount of the plaintiffs’ recovery of damages.

In this opinion the other justices concurred.

       The relevant policy provision reads: “This policy does not insure against loss . . . Under Coverages A and B ... 1. by wear and tear; marring or scratching; deterioration; inherent vice; latent defect; mechanical breakdown; rust; mold; wet or dry rot; contamination; smog; smoke from agricultural smudging or industrial operations; settling, cracking, shrinkage, bulging or expansion of pavements, patios, foundations, walls, floors, roofs or ceilings; birds, vermin, rodents, insects or domestic animals; unless loss by fire, smoke (other than smoke from agricultural smudging or industrial operations), explosions, collapse of a building, glass breakage or water not otherwise excluded ensues, then this policy shall cover only such ensuing loss.”

       Requiring the insured to await an actual collapse would not only be economically wasteful; Nationwide Mutual Fire Ins. Co. v. Tomlin, 181 Ga. App. 413, 416, 352 S.E.2d 612 (1986); but would also conflict with the insured’s contractual and common law duty to mitigate damages.

       The plaintiffs claim that the relevant standard for assessing damages in this case is not the common law test of causation in fact but instead a contractual standard contemplated by the term “ensues” in the insurance policy. We need not, however, decide whether the plaintiffs are correct in this claim. Even if we were to accept the premise that the term “ensues” imposes a lesser burden of proof upon the plaintiffs, we would still conclude that the plaintiffs have failed to show any credible link between the installation of the septic tank system and the collapse of their foundation wall.


text:
    Mac’s Car City, Inc. v. American National Bank et al.
    (13103)
    Peters, C. J., Shea, Callahan, Covello and Hull, Js.
    Argued September 30
    decision released November 10, 1987

      John V. Zisk, for the appellant (plaintiff).

      Rachel L. Cavell, for the appellee (named defendant).
   Callahan, J.

The plaintiff, Mac’s Car City, Inc. (Mac’s Car City), filed this appeal from the judgment of the trial court, Wagner, J., granting the named defendant’s renewed motion for summary judgment dated January 7,1986, thus disposing of the plaintiff’s action. The sole issue presented by this appeal is whether a party may renew a motion for summary judgment previously denied by another trial judge on the ground that the initial motion for summary judgment lacked sufficient supporting documentation.

The facts relevant to this appeal are undisputed. In April, 1980, Mac’s Car City executed a promissory note in the amount of $18,000 to the American National Bank (bank) that was due and payable on July 7,1980. Mac’s Car City defaulted on the note and the bank instituted a collection action accompanied by an application for an order of attachment in the amount of $29,000. On July 28, 1980, the bank’s application for an order of attachment was granted by the trial court, Smith, J. On August 6,1980, Mac’s Car City filed an appearance in the action but failed to file an answer or to move to vacate, reduce or modify the order of attachment. On October 14, 1980, the court, Mancini, J., granted the bank’s motion for default for Mac’s Car City’s failure to plead, and thereafter, rendered judgment upon the default and awarded the bank damages in the amount of $22,765.75. American National Bank v. Mac’s Car City, Inc., Superior Court, judicial district of New Haven, Docket No. 184290 (October 14,1980). Mac’s Car City paid the damages in full on December 8, 1980.

Thereafter, on July 21,1983, Mac’s Car City brought this action against the American National Bank and Paul V. Orcutt, who had been the senior vice president of the bank in 1980. The complaint alleged that on July 22, 1980, the bank, through its authorized agent Orcutt, orally agreed to renew the promissory note for an additional ninety days at the option of the plaintiff. It is further alleged that the plaintiff exercised this option and paid the bank $667 in interest for the renewal period. Count one of the complaint alleged that the bank’s institution of the 1980 collection action amounted to a groundless or vexatious suit in violation of General Statutes § 52-568. Count two of the complaint sought damages for the breach of the alleged oral contract to renew the promissory note.

On May 23,1985, the bank moved for summary judgment on both counts arguing that the first count was barred as a matter of law because the prior suit had not terminated in the plaintiff’s favor, and that the second count was barred by the doctrine of res judicata. Orcutt also filed a motion for summary judgment. The trial court, O’Neill, J., granted the motion for summary judgment as to Orcutt on both counts but granted the motion as to the bank on the first count only. As to count two, the trial court noted that “the court does not have the facts of that ‘suit’ before it and, thus,

cannot grant the motion.” Thereafter, the bank filed a renewed motion for summary judgment dated January 7,1986, and attached copies of the relevant pleadings from the 1980 collection action, the notice of the entry of judgment upon default, the satisfaction of judgment, a memorandum of law and the affidavit of attorney Rachel L. Cavell which attested to the authenticity of the prior pleadings. The renewed motion for summary judgment was heard by the court, Wagner, J., which held that “the 1980 default judgment is res judicata with respect to the present action and that [the bank’s] motion for summary judgment should be granted.”

The plaintiff argues that the trial court erred in granting the renewed motion for summary judgment because there is no authority in Connecticut case law or the rules of practice for the filing of successive motions for summary judgment. Additionally, the plaintiff argues that the prior denial of the motion by Judge O’Neill established the “law of the case,” and precludes a subsequent determination of the same issue by another trial judge. We disagree.

Neither party cites the case of Barnes v. Schlein, 192 Conn. 732, 473 A.2d 1221 (1984), which is dispositive of the claims raised by the plaintiff. In Barnes, the plaintiff was injured after having fallen and was taken to Park City Hospital where she was treated by the defendant, an orthopedic surgeon. The plaintiff alleged that the defendant negligently treated her and caused her to undergo further surgery and suffer extreme pain and suffering. Id., 733. In Barnes, the defendant filed a motion for summary judgment on February 14,1978, on the ground that the action was barred by the statute of limitations set forth in General Statutes § 52-584. The motion was denied by the trial court, Ford, J., on October 20,1978. Approximately three and one-half years later the defendant refiled the identical motion for summary judgment. The court, Jacobson, J., granted the motion on October 4,1982. On appeal, the plaintiff claimed that the trial court erred in granting the motion because “a prior motion for summary judgment had been denied, thus establishing the law of the case.” Id. This court disagreed with the plaintiffs claim in Barnes and held: “ ‘The law of the case is not written in stone but is a flexible principle of many facets adaptable to the exigencies of the different situations in which it may be invoked. See 18 Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction § 4478.’ Breen v. Phelps, 186 Conn. 86, 99, 439 A.2d 1066 (1982). We have declared that, although a judge should not lightly depart from a prior ruling on a motion before the same or a different judge, the prior ruling is not binding.” Id., 734. In Barnes, this court went on to consider the substantive merits of the summary judgment rendered by the trial court. We need not do so, however, for the plaintiff conceded at oral argument that there is no quarrel with the merits of the judgment entered, but only with the procedural problem presented. Additionally, the plaintiff has not briefed the issue of res judicata in this appeal.

It must also be noted that prior to ruling on the merits of the bank’s renewed motion for summary judgment, the trial court addressed the propriety of refiling a summary judgment motion that had been previously denied. The court found nothing in our rules of practice that prohibited the refiling and looked to the federal rules for guidance. Although the federal rules of civil procedure and the federal court’s interpretations thereon are not binding upon the state courts, this court has repeatedly noted the substantial similarity between the federal and Connecticut summary judgment procedures and has often relied upon federal rules and case law for guidance. See Farrell v. Farrell, 182 Conn. 34, 38-39, 438 A.2d 415 (1980); D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980); Plouffe v. New York, N.H. & H. R. Co., 160 Conn. 482, 487, 280 A.2d 359 (1971); United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 376,270 A.2d 596 (1969); 1 E. Stephenson, Connecticut Civil Procedure (2d Ed.) § 162 (b), p. 646. Relying upon rules 54 (b) and 56 (f) of the Federal Rules of Civil Procedure, the federal courts have held that it is not an abuse of discretion or a violation of the doctrine of the “law of the case” for a trial judge to reconsider a motion for summary judgment that has previously been denied, particularly where new evidence has been presented which was not before the court at the time of the original motion, or a clarification of the law has since occurred. See Jones v. Wike, 654 F.2d 1129,1130 (5th Cir. 1981); Lindsey v. Dayton-Hudson Corporation, 592 F.2d 1118, 1121 (10th Cir. 1979); Kirby v. P.R. Mollory & Co., 489 F.2d 904, 913 (7th Cir. 1973); Allstate Finance Corporation v. Zimmerman, 296 F.2d 797, 799 (5th Cir. 1961); Kenyatta v. Moore, 623 F. Sup. 220, 222-23 (S.D. Miss. 1985); Rosenberg v. American Bowling Congress, 589 F. Sup. 547, 549-50 (M.D. Fla. 1984); Shearer v. Homestake Mining Co., 557 F. Sup. 549 (D.S.D. 1983), aff'd, 727 F.2d 707, 709 (8th Cir. 1984); Advanced Hydraulics, Inc. v. Eaton Corporation, 415 F. Sup. 283, 284 (N.D. Ill. 1976).

The summary judgment procedure “ ‘is “designed to eliminate the delay and expense incident to a trial where there is no real issue to be tried. . . .” ’ ” Kakadelis v. DeFabritis, 191 Conn. 276, 281, 464 A.2d 57 (1983); Dowling v. Kielak, 160 Conn. 14, 16, 273 A.2d 716 (1970); Dorazio v. M.B. Foster Electric Co., 157 Conn. 226, 228, 253 A.2d 22 (1968). It “is an attempt to dispose of cases involving sham or frivolous issues in a manner which is speedier and less expensive for all concerned than a full-dress trial.” Town Bank & Trust Co. v. Benson, 176 Conn. 304, 306-307, 407 A.2d 971 (1978); Plouffe v. New York, N.H. & H. R. Co., supra, 487; United Oil Co. v. Urban Redevelopment Commission, supra, 375. Accordingly, we hold that it is within the trial court’s discretion to consider a renewed motion for summary judgment that has previously been denied where, as here, additional or new evidence has been submitted which was not before the court in ruling upon the earlier motion for summary judgment. See 73 Am. Jur. 2d 733, Summary Judgment § 12. We must caution, however, that our holding today should not be construed to condone future unnecessary piecemeal litigation brought on by the repeated filing of successive motions for summary judgment.

There is no error.

In this opinion the other justices concurred.

       “[General Statutes (Rev. to 1983)] Sec. 52-568. treble damages for vexatious suit. Any person who commences and prosecutes any civil action or complaint against another, in his own name, or the name of others, without probable cause, and with a malicious intent unjustly to vex and trouble him, shall pay him treble damages.”

       It is clear from the court’s memorandum of decision that it did not address the substantive merits of the bank’s res judicata claim. Rather, the court indicated that it could not address the merits because it did not have the facts of the 1980 collection action before it in order to address the res judicata issues.

       “[General Statutes] Sec. 52-584. limitation of action for injury to person OR PROPERTY. No action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct, or by malpractice of a physician, surgeon, dentist, podiatrist, chiropractor, hospital or sanatorium, shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of, except that a counterclaim may be interposed in any such action any time before the pleadings in such action are finally closed.”

       The specific wording of both motions for summary judgment was identical, although it is not clear from the record and briefs whether the supporting memoranda and documents were also the same or whether additional evidence was submitted with the second motion. What is clear is that the defendant submitted his own affidavit and portions of the plaintiff’s deposition in suppport of the second motion for summary judgment. Barnes v. Schlein, 192 Conn. 732, 736-37, 473 A.2d 1221 (1984).

       Rule 54 (b) of the Federal Rules of Civil Procedure provides: “judgment UPON MULTIPLE CLAIMS OR INVOLVING MULTIPLE PARTIES
      “When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.”

       Rule 56 (f) of the Federal Rules of Civil Procedure provides: “when AFFIDAVITS ARE UNAVAILABLE
      “Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.”