Opinion
No. CV05 400 69 01
January 30, 2006
MEMORANDUM OF DECISION RE MOTION TO DISMISS ( #113)
On March 15, 2005, the plaintiff, Elisa Diaz, deceased, filed a two-count complaint against the defendant, PARCC Health Care, Inc., doing business as Astoria Park. This action arises out of injuries and losses allegedly sustained as a result of the plaintiff's fall, on March 9, 2003, when the wheelchair she was being transported in, owned by the defendant, broke.
Attached to the defendant's motion to dismiss is Exhibit B, the plaintiff's certificate of death, which indicates that she died on February 10, 2005. The plaintiff's cause of death is unrelated to the allegations in the complaint.
Count one alleges that as a result of the defendant's negligence and carelessness, the plaintiff suffered injuries. Count two alleges that the defendant is liable for the plaintiff's injuries under Title 42 of the Code of Federal Regulations, § 483.25(h)(1) and (2) because the defendant failed to prevent accidents.
On September 1, 2005, the defendant filed a motion to dismiss, accompanied by a memorandum in support. On September 6, 2005, the plaintiff filed a motion for extension of time to respond to the motion to dismiss and to appoint an executrix so that a motion to substitute an executor as a party could be filed. The defendant filed an objection to the plaintiff's request on September 16, 2005. On October 25, 2005, the plaintiff filed a memorandum in opposition to the defendant's motion to dismiss and the defendant filed a reply.
"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005). "Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction." St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003). "Jurisdiction of the subject-matter is the power [of the court] to hear and determine cases of the general class to which the proceedings belong . . . [O]nce the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented . . . and the court must fully resolve it before proceeding further with the case." (Internal quotation marks omitted.) Esposito v. Specyalski, 268 Conn. 336, 348, 844 A.2d 211 (2004).
The defendant moves to dismiss the present action, pursuant to Practice Book §§ 10-31 and 10-33, on the ground that the court lacks subject matter jurisdiction because the plaintiff is deceased, and therefore, is not a legally recognizable party to bring a lawsuit. In support of the motion, the defendant argues that the plaintiff, as a deceased person, lacks standing to bring a lawsuit. The defendant contends that the motion to dismiss should be granted because the plaintiff died prior to the commencement of this action, an administrator or executor was not appointed, and therefore, the plaintiff lacks the legal capacity to sue. The defendant argues that since there is no recognized plaintiff in the complaint, the plaintiff cannot amend the original complaint because it is null and void.
The plaintiff counters that under General Statutes § 52-599(a), a cause of action shall survive in favor of the executor or administrator of a deceased person. The plaintiff concedes that the present action should have been brought in the name of the plaintiff's executor or administrator, however, the plaintiff's counsel claims he was unaware of the plaintiff's death prior to the commencement of this action. The plaintiff further argues that under General Statutes § 52-109, the plaintiff should be allowed to file a motion to substitute the plaintiff's executor or administrator for the plaintiff because the present action was commenced in the plaintiff's name by mistake. The plaintiff also argues that under General Statutes § 52-594, the plaintiff's executor or administrator has until February 2006 to bring a personal injury action on behalf of the plaintiff. Finally, the plaintiff contends that a new action could be commenced in the name of the executor or administrator under General Statutes § 52-592, the accidental failure of suit statute.
"It is elemental that in order to confer jurisdiction on the court the plaintiff must have an actual legal existence, that is he or it must be a person in law or a legal entity with legal capacity to sue." (Internal quotation marks omitted.) Isaac v. Mount Sinai Hospital, 3 Conn.App. 598, 600, 490 A.2d 1024, cert. denied, 196 Conn. 807, 494 A.2d 904 (1985). "[A] dead person is a nonexistent entity and cannot be a party to a suit." (Internal quotation marks omitted.) Noble v. Corkin, 45 Conn.Sup. 330, 333, 717 A.2d 301 (1998). Also, "[w]here a plaintiff lacks standing to sue, the court is without subject matter jurisdiction . . . One cannot rightfully invoke the jurisdiction of the court unless he [or she] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy." (Internal quotation marks omitted.) Eder Bros, Inc. v. Wine Merchants of Connecticut, Inc., 275 Conn. 363, 369, 880 A.2d 138 (2005). Therefore, the plaintiff, as a deceased person, cannot be a party to a lawsuit because she is a nonexistent entity and does not have standing.
The plaintiff, however, argues that under § 52-599(a), the present cause of action shall survive in favor of the plaintiff's executor or administrator. The survival of action statute, § 52-599(a) provides, in relevant part: "A cause or right of action shall not be lost or destroyed by the death of any person, but shall survive in favor of or against the executor or administrator of the deceased person." subsection (b) of § 52-599 provides in relevant part: "A civil action or proceeding shall not abate by reason of the death of any party thereto, but may be continued by or against the executor or administrator of the decedent. If a party plaintiff dies, his executor or administrator may enter within six months of the plaintiff's death or at any time prior to the action commencing trial and prosecute the action in the same manner as his testator or intestate might have done if he had lived." As noted in Noble v. Corkin, supra, 45 Conn.Sup. 333, when referring to § 52-599, "[s]tatutes of this description apply when a party dies after commencement of the action."
In the present action, the plaintiff died before the commencement of the action. Furthermore, no executor or administrator was appointed to represent the deceased plaintiff at the time of commencement and still has not been appointed. On these facts, § 52-599(a) does not save this case because there is "no cause or right of action to be saved, and no civil action or proceeding ever existed." (Internal quotation marks omitted.) Noble v. Corkin, supra, 45 Conn.Sup. 333.
The plaintiff's next argument concerns § 52-109, which provides for amendment of the complaint. The plaintiff argues that § 52-109 allows the filing of a motion to substitute the plaintiff's executor or administrator for the plaintiff because the present action was commenced in the plaintiff's name by mistake. Section 52-109 provides, in relevant part: "When any action has been commenced in the name of the wrong person as plaintiff, the court may, if satisfied that it was so commenced through mistake, and that it is necessary for the determination of the real matter in dispute so to do, allow any other person to be substituted or added as plaintiff" (Emphasis added.)
In Boulais v. Boulais, Superior Court, judicial district of New Haven, Docket No. CV 94 0368009 (February 3, 1995, Hodgson, J.) ( 13 Conn. L. Rptr. 462), the court stated that § 52-109 reads "as allowing amendment where a person or legal entity recognized as having the ability to sue is identified instead of some other such proper party . . . Where the initial plaintiff is not a legal entity with the ability to bring suit, however, the refusal of the Appellate Court to allow amendment in Isaac v. Mount Sinai suggests that § 52-109 is inapplicable where the initial suit is a nullity." (Citation omitted.) Id. In the present action, the plaintiff is not a legal entity with the ability to sue, and therefore, § 52-109 is inapplicable because the initial complaint is a nullity.
Isaac v. Mount Sinai Hospital, supra, 3 Conn.App. 598.
The plaintiff's arguments under § 52-599(a) and § 52-109 suppose that an executor or administrator exists to substitute and that a motion to substitute was filed. The plaintiff, however, has not filed the motion nor has the plaintiff shown that a representative has yet been appointed.
Furthermore, "through mistake," under § 52-109, has been interpreted to mean "an honest conviction, entertained in good faith and not resulting from the plaintiff's own negligence that she is the proper person to commence the lawsuit." Wilson v. Zemba, Superior Court, judicial district of New Haven, Docket No. CV 03 0484071 (November 16, 2004, Corradino, J.) ( 38 Conn. L. Rptr. 272). The court stated, "[w]hen the legislature used the word mistake a common sense appraisal of what they meant is merely to describe the context in which the statute was to apply — the lawyer named the wrong plaintiff." Id.
The court is not satisfied that the present action was commenced "through mistake," and that the plaintiff's attorney named the wrong plaintiff. Although the plaintiff's attorney claims that he was unaware of the plaintiff's death at the time the present action was commenced, he was charged with the responsibility to keep his client reasonably informed about the status of this matter. See Rules of Professional Conduct 1.4. It appears that the plaintiff's attorney did not communicate with the plaintiff prior to the filing of the complaint. Furthermore, the plaintiff's attorney does not indicate when he spoke to his client last, whether the plaintiff's daughter had a power of attorney, or why he listed the first named plaintiff as "Elisa Diaz, c/o Linda Rivera." Accordingly, the plaintiff's attorney does not provide any valid reasons to convince the court that his actions constituted "mistake."
The plaintiff also argues that under § 52-594, the plaintiff's executor or administrator has until February 2006, to bring a personal injury action on behalf of the plaintiff. Section 52-594 provides in relevant part: "If the time limited for the commencement of any personal action, which by law survives to the representatives of a deceased person, has not elapsed at the time of the person's death, one year from the date of death shall be allowed to his executor or administrator to institute an action therefor. In computing the times limited in this chapter, one year shall be excluded from the computation in actions covered by the provisions of this section."
Under § 52-594, the executor or administrator can institute a new action on behalf of the plaintiff before February 10, 2006, which is one year from the plaintiff's date of death. This statute, however, does not allow the executor or administrator to be substituted in the present action. Therefore, when an administrator or executor is appointed, such representative may possibly bring a new personal injury action on behalf of the plaintiff before February 10, 2006. The possibility of bringing a new action, however, does not mean that the current action is valid. Finally, the plaintiff argues that a new action could be commenced in the name of the executor or administrator under § 52-592, the accidental failure of suit statute. Section 52-592(a) provides in relevant part: "If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits because . . . the action has been dismissed for want of jurisdiction, or the action has been otherwise avoided or defeated by the death of a party or for any matter of form . . . the plaintiff, or, if the plaintiff is dead and the action by law survives, his executor or administrator, may commence a new action . . . for the same cause at any time within one year after the determination of the original action . . ."
In order for § 52-592 to be invoked, the present action must first fail. Because the court lacks subject matter jurisdiction to hear the present case, it has failed. Therefore, the plaintiff's representative may have until one year after the date of this court's decision to bring an action under § 52-592(a). As with § 52-594, the ability to bring an action under § 52-592 does not validate the current action.
Accordingly, the motion to dismiss is granted because the court lacks subject matter jurisdiction over the present action.