Summary
In Don Rich Corporation v. Rossini, 1 Conn. App. 120, 122 (1983), the Appellate Court reversed a summary judgment which had been granted on the ground that the plaintiff corporation had been dissolved prior to the institution of the action.
Summary of this case from New England Astro Optics, Inc. v. BeatmanOpinion
(2304)
The plaintiff, D Co., in 1980 filed a negligence action against the defendants who, by way of a special defense, claimed that D Co. was incapable of bringing suit because it had been dissolved in 1979. Thereafter, D Co. filed an amended complaint in which it alleged that the real party in interest was its insurer, H Co., and filed with that amended complaint a motion to substitute H Co. as the party plaintiff. The trial court denied the motion for substitution and granted the defendants' motion for summary judgment in which they alleged that there was no genuine issue of material fact as to D Co.'s dissolution and that judgment should therefore be rendered for them as a matter of law. On appeal by D Co., held: 1. Because a dissolved corporation has a statutory (33-378[e]) right to bring an action in its own name, the trial court erred in granting the motion for summary judgment. 2. Because the record disclosed that the real party in interest was H Co., and because the rules of practice (104) permit suit to be brought in the name of the real party in interest, the trial court erred in denying the motion for substitution.
Argued October 13, 1983
Decision released December 27, 1983
Action to recover damages for the alleged negligence of the defendants, brought to the Superior Court in the judicial district of Danbury where the court, Ford, J., denied the plaintiff's motion to substitute the party plaintiff and granted the defendants' motion for summary judgment, from which the plaintiff appealed. Error; further proceedings.
Dennis M. Laccavole, for the appellant (plaintiff).
Michael A. Dowling, for the appellees (defendants).
The named plaintiff, Don Rich Corporation, was dissolved prior to the filing of this negligence action. The real party in interest is the Hartford Accident and Indemnity Company (Hartford A I). The trial court denied the plaintiff's motion to substitute Hartford A I as the party plaintiff and granted the defendants' motion for summary judgment. The ground for the defendants' motion was that no genuine issue of material fact existed as to the dissolution of the plaintiff corporation and that judgment should, therefore be rendered as a matter of law. The plaintiff has appealed from both decisions.
This appeal, originally filed in the Supreme Court, was transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, 2(c).
This action was commenced by the plaintiff corporation on March 27, 1980, after it had been dissolved on January 31, 1979. The plaintiff corporation sought money damages for the alleged negligence of the defendants. The defendants answered the complaint and pleaded as a special defense the incapacity of the plaintiff to sue because of its dissolution as of January 31, 1979. Instead of replying to the special defense, the plaintiff filed an amended complaint in which it set forth that the action was being pursued by way of subrogation, the real party in interest being the plaintiff's insurer, Hartford A I. With the amended complaint, the plaintiff filed a motion to substitute the insurer as party plaintiff. The defendants answered the amended complaint and claimed by way of special defense that a lease between the parties absolved the defendants of liability.
Section 33-378(a) of the General Statutes specifically states that "[d]issolution terminates the corporate existence of the dissolved corporation." There is no question that in the present case the Don Rich Corporation was dissolved on January 31, 1979. A dissolved corporation, however, has been given the right by statute to bring an action: "Any action or proceeding by or against a dissolved corporation may be prosecuted or defended by the corporation in its corporate name . . . ." General Statutes 33-378(e). Although there was no genuine issue concerning the dissolution of the plaintiff, it was error for the trial court to grant the defendants' motion for summary judgment since the plaintiff had a statutory right to bring the suit.
The record discloses that this action involved a subrogation claim by the real party in interest, the Hartford A I. The Don Rich Corporation is the nominal party in interest. This was disclosed at the time of the filing of the amended complaint and the motion to substitute the plaintiff. Practice Book 104 permits a suit to be brought in the name of the real party in interest. Therefore, the trial court erred in denying the motion to substitute.