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ORD323.11 12-08-16 13:22:57


         JOHN DOE v. THE BOY SCOUTS OF
          AMERICA CORPORATION ET AL.
                   (SC 19516)
  The motion of the defendant-appellant, filed October
21, 2016, for reconsideration en banc, having been pre-
sented to the court, it is hereby ordered denied.
  PALMER and VERTEFEUILLE, Js., did not partici-
pate in the discussion or decision of this motion.
                       December 8, 2016

   ZARELLA, J., with whom ESPINOSA and ROBINSON,
Js., join, dissenting from the denial of the named defen-
dant’s motion for reconsideration en banc. In its deci-
sion in this matter, a majority of this court concluded
that the thirty year statute of limitations set forth in
General Statutes § 52-577d applied to the plaintiff’s
claims, instead of the two year limitation period for
negligence claims set forth in General Statutes § 52-
584. Doe v. Boy Scouts of America Corp., 323 Conn.
303, 331, 340, 147 A.3d 104 (2016) (opinion announcing
judgment);1 see also id., 354 (Eveleigh, J., concurring
and dissenting) (noting agreement with part V of opin-
ion announcing judgment, in which statute of limita-
tions issue was addressed).2 I dissented in part in that
case, concluding that § 52-584 applied to and barred
the plaintiff’s claims. See id., 343–44 (Zarella, J., concur-
ring in part and dissenting in part). The named defen-
dant, The Boy Scouts of America Corporation,3 filed a
motion for reconsideration, principally arguing that this
court overlooked its earlier decision in Greco v. United
Technologies Corp., 277 Conn. 337, 890 A.2d 1269
(2006), in reaching its conclusion in the present case.
The defendant claims that Greco relied on reasoning
that undermines the decision in the present case, requir-
ing reconsideration. Because I agree with the defendant
that we should consider the impact of Greco on the
present case, I would grant the defendant’s motion for
reconsideration. The majority’s refusal to do so leaves
its decision in conflict with our prior decision in Greco
and thus creates dissonance in our case law. I therefore
respectfully dissent from the majority’s decision to deny
the defendant’s motion.
   It appears from the record that this court overlooked
our prior decision in Greco when deciding the present
case. Neither the plaintiff, John Doe, nor the defendant
cited Greco in their briefs to this court, but the defen-
dant brought it to the court’s attention in a letter sent
to the court eighteen days after oral argument. Never-
theless, neither the opinion announcing the judgment
nor the separate concurring and dissenting opinions
cited the case, and I acknowledge that I was unaware
of Greco and its relevance to the present case when I
issued my concurrence and dissent.
   Our decision in Greco is significant to our resolution
of the present case. The parties in the present case
disputed whether the thirty year limitation period in
§ 52-577d or the two year limitation period in § 52-584
applies to the plaintiff’s claims. Doe v. Boy Scouts of
America Corp., supra, 323 Conn. 331. Section 52-577d
provides: ‘‘Notwithstanding the provisions of section
52-577, no action to recover damages for personal
injury to a minor, including emotional distress, caused
by sexual abuse, sexual exploitation or sexual assault
may be brought by such person later than thirty years
from the date such person attains the age of majority.’’
(Emphasis added.) In my concurring and dissenting
opinion, I concluded that, because § 52-577d expressly
preempts only General Statutes § 52-577, the legislature
did not intend for § 52-577d to preempt any statute of
limitations other than § 52-577. See Doe v. Boy Scouts
of America Corp., supra, 345–49 (Zarella, J., concurring
in part and dissenting in part). Section 52-577 applies
generally to intentional torts but not to negligence
claims, such as those made in the present case. See id.,
332–33. The statute of limitations for negligence claims
can be found in § 52-584, which provides for a two year
statute of limitations, and, although § 52-577d expressly
preempts § 52-577, it does not expressly preempt the
limitations period in § 52-584. I therefore concluded that
the legislature’s decision not to have § 52-577d displace
§ 52-584 indicated that the legislature did not believe
that the longer, thirty year statute of limitations for
tortious sexual misconduct also applied to negligent
misconduct claims; rather, the legislature understood
that § 52-577d would apply only to claims involving
intentional conduct. See id., 344 (Zarella, J., concurring
in part and dissenting in part).
   Our decision in Greco applied the same logic to reach
a similar conclusion concerning other statutes of limita-
tions for certain tort claims. Greco involved a claim for
wrongful death under General Statutes § 52-555, and a
statute of limitations for tort claims involving harm
from hazardous chemicals set forth in the version of
General Statutes § 52-577c (b) applicable when those
claims were brought. Greco v. United Technologies
Corp., supra, 277 Conn. 341–42, 348. The statute of
limitations for wrongful death is two years from the
date of death, whereas the limitation period for harm
caused by hazardous chemicals is two years from the
date the harm is discovered. Compare General Statutes
§ 52-555 with General Statutes § 52-577c (b). The plain-
tiffs in Greco claimed that the hazardous chemical stat-
ute of limitations applied to their claims, whereas the
defendants argued that the wrongful death limitation
period applied. See Greco v. United Technologies Corp.,
supra, 342, 348. Like the statute at issue in the present
case, § 52-577c (b) also contains a ‘‘notwithstanding’’
clause that preempts certain other statute of limitations
provisions. The version of § 52-577c (b) applicable in
Greco provided that it applied ‘‘[n]otwithstanding the
provisions of sections 52-577 and 52-577a,’’ but it made
no mention of displacing the wrongful death limitations
period in § 52-555. As a result, we concluded in Greco
that, ‘‘to the extent that § 52-577c (b) otherwise may
be applicable under the present factual circumstances,
that statutory provision expressly preempts [General
Statutes] §§ 52-577 and 52-577a but, notably, does not
purport to preempt § 52-555. If the legislature had
intended for § 52-577c (b) to preempt § 52-555, it easily
could have done so by enumerating § 52-555, along with
§§ 52-577 and 52-577a, as one of the statutes of limita-
tion[s] preempted by § 52-577c (b). . . . The fact that
it did not do so is strong evidence that the legislature
did not intend for § 52-577c (b) to preempt § 52-555.’’
(Citation omitted; emphasis added.) Greco v. United
Technologies Corp., supra, 349.
  Greco therefore establishes a principle that applies
to our interpretation of other statutes of limitations
containing similar ‘‘notwithstanding’’ clauses. That is,
when the legislature expressly preempts certain stat-
utes of limitations, but not others, we interpret the
legislature’s enumeration of specific statutes as ‘‘strong
evidence’’ that the legislature did not intend to disturb
other statutes of limitations not expressly preempted.
Id.
   Application of this principle from Greco to the present
case demonstrates that the legislature did not intend
for § 52-577d to preempt the statute of limitations for
negligence claims. If the legislature had intended for
§ 52-577d to apply to negligent conduct and thus to
displace the statute of limitations for negligence claims
in § 52-584, it easily could have expressed that intention
in the statutes. A majority of the justices concluded in
the present case that the legislature’s omission of § 52-
584 ‘‘merely creates ambiguity’’ about the legislature’s
intent; Doe v. Boy Scouts of America Corp., supra, 323
Conn. 333; but that position is inconsistent with our
decision in Greco. As we explained in Greco, the legisla-
ture’s decision to expressly preempt certain statutes of
limitations while omitting others does not create an
ambiguity about the legislature’s intent but instead pro-
vides ‘‘strong evidence that the legislature did not intend
for’’ § 52-577d to preempt the existing statute of limita-
tions for negligent conduct. Greco v. United Technolo-
gies Corp., supra, 277 Conn. 349.
   Our decision in Greco also undermines the persua-
siveness of the principal authorities on which the opin-
ion announcing the judgment relied. A majority of the
justices in the present case ultimately concluded that
the legislature intended that the thirty year limitations
period in § 52-577d preempted § 52-584, despite the leg-
islature’s failure to state that intention explicitly. In
reaching this conclusion, that majority relied on two
United States District Court decisions addressing the
same question presented in the present case and reach-
ing the same conclusion as the majority. See Doe v.
Boy Scouts of America Corp., supra, 323 Conn. 334–36,
citing Doe v. Indian Mountain School, Inc., 921 F. Supp.
82 (D. Conn. 1995), and Almonte v. New York Medical
College, 851 F. Supp. 34 (D. Conn. 1994). Those deci-
sions were, however, decided before our decision in
Greco, and, thus, the court in those cases did not have
the benefit of its reasoning. The holding in Greco clearly
conflicts with the reasoning employed by the District
Court, rendering the federal cases of no persuasive
value. Compare Greco v. United Technologies Corp.,
supra, 277 Conn. 349, with Doe v. Indian Mountain
School, Inc., supra, 83–84, and Almonte v. New York
Medical College, supra, 37. Ironically, if the present case
had been filed in the District Court rather than in state
court, the District Court could rely solely on its prior
decisions because they are in conflict with our decision
in Greco. By relying on stale precedent from federal
courts, rather than its own, more recent decisions, this
court has effectively abdicated its role as the final arbi-
ter of the meaning of Connecticut law.4
  For the foregoing reasons, the logic in Greco strongly
undermines the holding of the majority of justices in
the present case. The majority’s decision has created
a conflict with our prior decision in Greco, and the
majority’s refusal to address the impact of Greco leaves
the state of our law in question. The opinion announcing
the judgment made no attempt to distinguish the princi-
ple adopted in Greco—indeed, it did not even cite the
decision. In my view, the court would do well to at
least explain why it is denying reconsideration and thus
overruling, sub silentio, the principle applied in Greco.
Accordingly, I respectfully dissent.
   1
     Chief Justice Rogers authored the opinion announcing the judgment, in
which Judge Sheldon concurred.
   2
     Justice McDonald joined Justice Eveleigh in his concurrence and dissent.
   3
     We hereinafter refer to the named defendant as the defendant.
   4
     The District Court in Almonte acknowledged that the question it was
addressing was one of first impression but nevertheless declined to certify
the question to this court. See Almonte v. New York Medical College, supra,
851 F. Supp. 35 n.1. The District Court should in the future consider certifying
such questions of law, as we have encouraged through our adoption of
Practice Book § 82-1 et seq. Doing so will allow this court to better serve
its institutional role and help to avoid unnecessary dissonance between
state and federal courts in their respective applications of Connecticut law.
