Opinion
HHDCV146051632S
08-09-2016
Estate of Anthony Pedraza v. State of Connecticut
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO DISMISS (#127) AND MOTION TO SUBSTITUTE (#132)
Sheila A. Huddleston, Judge.
The plaintiff, " Estate of Anthony Pedraza" (estate), brought this wrongful death action after receiving permission from the Claims Commissioner to sue the defendant, State of Connecticut (state), for the alleged malpractice of medical personnel in the correctional institution where the decedent was incarcerated. A week before the trial was scheduled to commence, the state moved to dismiss all or part of the complaint on eight grounds. (Docket entry #27.) The two principal grounds were that (1) the plaintiff failed to submit a timely claim to the Claims Commissioner, and (2) only the executors or administrators of an estate, not the estate itself, are authorized to bring an action for wrongful death under General Statutes § 52-555.
In opposing the state's motion, the plaintiff addressed only one of the issues raised by the state: whether the complaint properly alleges that the co-administrators of the decedent's estate are the plaintiffs in this action. The plaintiff acknowledged that the summons and caption of the complaint identify the " Estate of Anthony Pedraza" as the plaintiff, but pointed to the first two paragraphs of the complaint, which state that Fermin Pedraza and Mayra Aponte were appointed co-administrators of the estate and that they bring this action under the state's wrongful death statute. The plaintiff argued that the state should have filed a motion to strike rather than a motion to dismiss, affording the co-administrators the opportunity to replead. The plaintiff also subsequently filed a motion to substitute the co-administrators of the estate as plaintiffs (docket entry #132), arguing that because the co-administrators are clearly identified in the complaint, the failure to identify them in the summons and caption is a circumstantial defect that can be corrected by the motion to substitute and will relate back to the original complaint. The state opposed the motion to substitute, arguing that the motion to dismiss must be decided first because it relates to the court's subject matter jurisdiction.
For the reasons stated below, the court concludes that the Claims Commissioner lacked jurisdiction to grant the petition to sue the state because the notice of claim was untimely under General Statutes § 4-148 and failed to name the proper parties as claimants as required by General Statutes § 52-555. Even if the court were to consider the motion to substitute, that motion could not cure the untimeliness of the notice of claim. The motion to dismiss is, therefore, granted and the motion to substitute is dismissed as moot.
I
Factual Allegations
The material allegations in the plaintiff's complaint are as follows: Anthony Pedraza was incarcerated at Corrigan-Radgowski Correctional Institution (Corrigan) in February 2012. Corrigan is a correctional facility owned and operated by the state. At all relevant times, the state, through its agents and employees, had control over all aspects of Pedraza's health care. An intake health screening conducted by Corrigan personnel on February 10, 2012, showed that Pedraza was in excellent health at that time. He was twenty-four years old. Over the period from June 28, 2012 to July 7, 2012, Pedraza made a number of visits to medical personnel at Corrigan. During that period, Pedraza had an elevated temperature, vomiting or nausea, headaches that increased in intensity as the days passed, ocular pressure behind his eyeballs, cold sweats, and increasing pressure in his head, to the point that his scalp was painful to the touch. During that period, he was not seen by a physician or registered nurse. On June 29, a licensed practical nurse made a referral to optometry because of Pedraza's complaint of ocular pain. On July 3, a facility clinician examined Pedraza's eyes and noted " upper lid ptosis." On the same day, a clinician recommended that Pedraza's " ptosis problem" be evaluated at the University of Connecticut Health Center. No such evaluation was performed.
No medical doctor, doctor of osteopathy, or registered nurse examined Pedraza between June 29 and July 5. On July 6, Pedraza was taken by wheelchair to medical personnel. He presented with a temperature of 101.6 degrees, a pounding headache, and was too sick to move. A physician prescribed Motrin but the medical record does not indicate that Pedraza was actually examined by a physician or a registered nurse on that date. On July 7, a licensed practical nurse at Corrigan examined Pedraza and noted that he was " not himself." He had weakness in his legs, a severe headache, a temperature of 100.7 degrees, a heart rate of 24 and blood pressure of 93/60. A physician ordered his admission to the infirmary for intravenous hydration. Some hours later, Pedraza was transported to the emergency department at Backus Hospital, where physicians attempted to stabilize him and ordered his transfer to John Dempsey Hospital at the University of Connecticut Health Center. He was transferred to John Dempsey Hospital by 7:05 p.m. on July 7. He remained at John Dempsey Hospital from July 7 to July 13. He underwent surgery on July 8, for a brain abscess. On July 9, he experienced multiple seizures and had to be intubated. On July 11, he was declared brain dead.
Although the complaint itself does not allege the date or cause of Pedraza's death, a letter from a health care provider that is attached to the complaint states that Pedraza was diagnosed with acute meningitis before he was transferred from Backus Hospital to John Dempsey Hospital. After being pronounced brain dead at John Dempsey Hospital on July 11, he was extubated on July 13, 2012, and pronounced dead on the same day.
On August 27, 2012, Fermin Pedraza and Mayra Aponte were appointed co-administrators of Pedraza's estate by the Windham Colchester District 28 Probate Court.
II
Procedural History
On June 27, 2013, the Office of the Claims Commissioner received a putative " Notice of Claim" (first notice) that identified the claimant as " Anthony Pedraza." The statement of facts in the first notice began with the words: " The claimant's Estate alleges . . ." and the first notice ended with a signature block that stated, " The Claimant, Estate of Anthony Pedraza." All other references to the " claimant" in the first notice were to Anthony Pedraza. The claimant detailed the failure of the state's " agents, servants, employees and contractors" to examine, monitor, and diagnose Pedraza properly. The claimant requested five million dollars and permission to sue the state. The claimant enclosed a filing fee of $50 and alleged that the claim " has been filed within one year of the date of the incident."
Uncertified copies of (1) the first notice of claim, (2) the Claims Commissioner's letter rejecting the first notice of claim, (3) the second notice of claim, and (4) the Claims Commissioner's finding and order granting permission to sue are attached as Exhibits 1-4 to the state's memorandum of law in support of its motion to dismiss. The plaintiff did not object to the court's consideration of those documents, and their authenticity is not disputed. The plaintiff itself relied on certain of those documents in its opposition to the motion to dismiss and in its motion to substitute.
On July 9, 2013, the Claims Commissioner returned the first notice and the check for the filing fee to the claimant's attorney with the following comment: " Please make the necessary corrections and resubmit. We cannot assign a file # to this case the way it is written. The claimant would be the Estate of Anthony Pedraza not Anthony Pedraza the individual as he is now deceased unable to file in his name."
On July 16, 2013, the claimant's attorney hand-delivered a second notice of claim (second notice) to the Office of the Claims Commissioner. The second notice identified the claimant as the " Estate of Anthony Pedraza" but was otherwise essentially identical to the first notice. It concluded with the statement that a filing fee of $50 was included and that the claimant " alleges that his claim has been filed within one year of the date of the incident." It did not identify any executor or administrator of the estate, nor did it indicate that any fiduciary had been appointed by a probate court.
The state did not challenge the Claims Commissioner's jurisdiction or otherwise state its position with regard to the second notice. After the claimant filed a certificate of good faith, the Claims Commissioner granted the claimant permission to sue the state, finding that the requirements of General Statutes § 4-160(b) had been met. The grant of permission was expressly limited to " that portion of the claim alleging malpractice against the state, a state hospital or sanitarium or against a physician, surgeon, dentist, podiatrist, chiropractor, or all other licensed health care providers employed by the state."
The plaintiff commenced this action by service of the complaint on the Office of the Attorney General on June 6, 2014, and filed the complaint, with the return of service, on June 9, 2014. The state filed an answer with three special defenses, the first of which stated that " [t]he court lacks jurisdiction over these claims due to the expiration of the statute of limitations." The plaintiff moved to strike that special defense on the ground that the state had not identified the statute of limitations on which it relied. The state did not oppose the motion to strike, which was granted, and the state did not replead to specify an applicable statute of limitations.
The case proceeded through discovery, with a court trial scheduled for March 8, 2016. On February 29, 2016, the state moved to dismiss the action, alleging eight grounds for its motion: (1) the first notice filed with the Claims Commissioner was a nullity because it named the decedent as the claimant; (2) the second notice was a nullity because it named the " estate" of the decedent, rather than the fiduciaries of the estate, as the claimant; (3) the second notice was untimely, having been filed outside the one-year limit prescribed by General Statutes § 4-148; (4) the plaintiffs, co-administrators of the decedent's estate, were not named in the second notice and therefore were never granted permission to sue by the Claims Commissioner; (5) the first count of the amended complaint fails to allege that the plaintiffs obtained permission to sue from the Claims Commissioner, as required by General Statutes § 4-160(c); (6) the second count of the complaint, alleging " loss of chance, " was not authorized by the Claims Commissioner and is barred by sovereign immunity; (7) insofar as the complaint alleges negligence by any nurse, it exceeds the scope of permission granted by the Claims Commissioner because the notice of claim did not assert any negligence by any nurse; and (8) insofar as the complaint seeks damages for anything other than death itself, such as conscious pain and suffering, it exceeds the scope of the permission granted by the Claims Commissioner.
The first four grounds concern the authority of the Claims Commissioner to waive sovereign immunity on a late claim brought by an improper claimant, and they are therefore proper grounds for a motion to dismiss. The remaining four grounds concern alleged pleading inadequacies or jurisdictional defects as to portions of the claims which, if accepted, would limit the plaintiff's case but would not require dismissal of the entire action. Because the court concludes that dismissal is required, it does not address the latter four grounds.
The plaintiff does not address most of these grounds. It argues that the state should have raised these issues by a motion to strike rather than a motion to dismiss, and it seeks to substitute the co-administrators of the estate as plaintiffs. The state, in reply, argues that the issue of jurisdiction must be addressed before the motion for substitution can be considered.
The court finds it troubling that the state waited until days before trial to raise the issues in its motion to dismiss. The principal issues it raises were clearly identifiable when it received the second notice of claim. By failing to raise the issues before the Claims Commissioner, and then by failing to raise them promptly after the action was filed in this court, the state has subjected the parties and the court to a substantial expenditure of resources over three years. But it is axiomatic that defects in subject matter jurisdiction cannot be waived by any party, and the court must address them whenever they are raised. See Fairfield Merrittview Ltd. Partnership v. Norwalk, 320 Conn. 535, 548, 133 A.3d 140 (2016). Accordingly, the court turns first to the state's motion to dismiss.
III
The Motion to Dismiss
The state has moved to dismiss primarily on the grounds that (1) the Claims Commissioner lacked authority to grant the plaintiff permission to sue the state because the claim was untimely, and (2) an " estate" is not the proper party to assert a wrongful death claim. The first claim concerns the state's sovereign immunity. The legislature has conveyed limited authority upon the Claims Commissioner to waive the state's sovereign immunity and to grant permission to sue the state under General Statutes § § 4-141 through 4-160. The second claim concerns the plaintiff's standing to bring an action under the wrongful death statute, General Statutes § 52-555, which creates a right unknown at common law. Strict compliance with these statutes is required, and defects in compliance implicate the court's subject matter jurisdiction. See Ecker v. West Hartford, 205 Conn. 219, 232-33, 530 A.2d 1056 (1987) (when statute creates a right unknown at common law, its requirements are substantive and jurisdictional).
A
Applicable Legal Standards
A motion to dismiss tests whether, on the face of the record, the court is without jurisdiction. Chief Information Officer v. Computers Plus Center, Inc., 310 Conn. 60, 79, 74 A.3d 1242 (2013). " Different rules and procedures will apply [to a motions to dismiss], depending on the state of the record at the time the motion is filed." Conboy v. State, 292 Conn. 642, 651, 974 A.2d 669 (2009). " When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, it must consider the allegations of the complaint in their most favorable light . . . In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Id.
" In contrast, if the complaint is supplemented by undisputed facts established by affidavits submitted in support of the motion to dismiss; Practice Book § 10-31(a); other types of undisputed evidence . . . and/or public records of which judicial notice may be taken . . . the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts and need not conclusively presume the validity of the allegations of the complaint." (Citations omitted; emphasis in original; footnote omitted; internal quotation marks omitted.) Id., 651-52. " Rather, those allegations are tempered by the light shed on them by the [supplementary undisputed facts]." (Internal quotation marks omitted.) Id., 652. " If affidavits and/or other evidence submitted in support of a defendant's motion to dismiss conclusively establish that jurisdiction is lacking, and the plaintiff fails to undermine this conclusion with counteraffidavits; see Practice Book § 10-31(b); or other evidence, the trial court may dismiss the action without further proceedings." Id.
Questions of sovereign immunity implicate the court's subject matter jurisdiction. Id., 650. The principle that the state cannot be sued without its consent, or sovereign immunity, has deep roots in this state and our legal system in general. Hicks v. State, 297 Conn. 798, 801, 1 A.3d 39 (2010). " Sovereign immunity rests on the principle and on the hazard that the subjection of the state and federal governments to private litigation might constitute a serious interference with the performance of their functions and with their control over their respective instrumentalities, funds and property." (Internal quotation marks omitted.) Pamela B. v. Ment, 244 Conn. 296, 328, 709 A.2d 1089 (1998).
Because the doctrine of sovereign immunity operates as a strong presumption in favor of the state's immunity from liability or suit, our courts have repeatedly held statutes in derogation of sovereign immunity should be strictly construed. Hicks v. State, supra, 297 Conn. 801-02. " [W]hen there is any doubt about their meaning or intent they are given the effect which makes the least rather than the most change in sovereign immunity." (Emphasis in original.) Id.
A plaintiff seeking monetary damages against the state must first obtain authorization from the Claims Commissioner. Miller v. Egan, 265 Conn. 301, 317, 828 A.2d 549 (2003). With certain exceptions, the Claims Commissioner is authorized to " hear and determine all claims against the state." General Statutes § 4-142.
General Statutes § 4-142 provides as follows: " There shall be a Claims Commissioner who shall hear and determine all claims against the state except: (1) Claims for the periodic payment of disability, pension, retirement or other employment benefits; (2) claims upon which suit otherwise is authorized by law including suits to recover similar relief arising from the same set of facts; (3) claims for which an administrative hearing procedure otherwise is established by law; (4) requests by political subdivisions of the state for the payment of grants in lieu of taxes; and (5) claims for the refund of taxes."
General Statutes § 4-147 requires any person wishing to present a claim against the state to file a notice of claim with the Office of the Claims Commissioner. Section 4-148(a) prescribes a time limit of one year for filing a notice of claim. Section 4-158 authorizes the Claims Commissioner to deny a claim, to order immediate payment of a just claim up to twenty thousand dollars, to recommend to the General Assembly a payment of a just claim greater than twenty thousand dollars, or to authorize a claimant to sue the state under § 4-160. Section 4-160(a), in turn, provides that the Claims Commissioner may authorize a suit against the state " on any claim which, in the opinion of the Claims Commissioner, presents an issue of law or fact under which the state, were it a private person, could be liable." Section 4-160(b) directs the Claims Commissioner to authorize a malpractice action against the state if the claimant or claimant's attorney files with the Claims Commissioner a certificate of good faith in accordance with General Statutes § 52-190a. General Statutes § 52-190a, in turn, sets out procedural requirements for a medical malpractice action.
General Statutes § 4-148 provides in relevant part:
General Statutes § 4-160 provides in relevant part:
Because the claimant in this case sought to bring an action for wrongful death, it also had to comply with the wrongful death statute, General Statutes § 52-555. That section authorizes only " an executor or administrator" to bring an action for injuries resulting in death. Isaac v. Mount Sinai Hospital, 3 Conn.App. 598, 600-01, 490 A.2d 1024, cert. denied, 196 Conn. 807, 494 A.2d 904 (1985).
General Statutes § 52-555(a) provides: " 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 of death, and except that no action may be brought more than five years from the date of the act or omission complained of."
B
Analysis
Before addressing the substance of the state's motion to dismiss, the court first must determine whether it has jurisdiction to consider a motion that challenges the Claims Commissioner's granting of permission to sue the state. As a general rule, the Superior Court lacks jurisdiction to hear appeals from decisions of the Claims Commissioner. See, e.g., Circle Lanes of Fairfield, Inc. v. Fay, 195 Conn. 534, 541, 489 A.2d 363 (1985). When exercising his authority to grant or deny claims or to grant or deny permission to sue, the Claims Commissioner is exercising delegated legislative discretion. Id. When the issue before the court is one of statutory interpretation regarding the Claim Commissioner's statutory authority, however, it is within the court's jurisdiction. See D'Eramo v. Smith, 273 Conn. 610, 619, 872 A.2d 408 (2005). " Statutory interpretation is a quintessentially judicial function and this court has never hesitated to construe a statute to determine whether it constitutes a waiver of sovereign immunity." Id.
In this case, the state's motion to dismiss raises questions of the Claims Commissioner's statutory authority with respect both to the timeliness of the filing of the notice of claim under General Statutes § 4-148, and with respect to the party entitled to assert a wrongful death claim under General Statutes § 52-555. These questions do not concern the Claims Commissioner's exercise of legislative discretion, but rather concern his authority to authorize suit based on the undisputed facts. See id., 619; see also Merly v. State, 211 Conn. 199, 212, 558 A.2d 977 (1989) (General Statutes § 4-164(b) does not apply to judicial review of grant of permission to sue). The court therefore concludes that it has jurisdiction to consider the state's claim.
The first--and dispositive--issue is the timeliness of the plaintiff's notice of claim. The acts or omissions of the state's agents and employees that allegedly contributed to Pedraza's death began on June 28, 2012, when Pedraza first visited Corrigan medical personnel with an elevated temperature and other symptoms. The last such acts or omissions occurred on July 7, 2012, when Corrigan personnel ordered him transferred to Backus Hospital. Pedraza was declared brain-dead on July 11, 2012, and after life support devices were removed, he died on July 13, 2012. The plaintiff has not asserted that it was unaware that a cause of action existed by the date of Pedraza's death. Indeed, in its reply to the state's opposition to its motion to substitute, the plaintiff concedes that the second notice was filed with the Claims Commissioner " two or three days after the Statute of Limitations." This is not a case, therefore, where the plaintiff is arguing that there is a dispute as to when the claim accrued. Both the plaintiff and the state agree that the latest date on which the claim could have accrued was the date of Pedraza' death, July 13, 2012. Accordingly, under General Statutes § 4-148(a), the plaintiff was required to file a notice of claim no later than July 13, 2013.
No malpractice claims have been asserted against Backus Hospital or John Dempsey Hospital.
See Plaintiff's Surebutter [sic] Regarding Opposition to Plaintiff's Motion to Substitute Plaintiff, filed May 6, 2016 (docket entry #136), p. 4.
The plaintiff admits that the second notice was outside the limitation period but argues that it relates back to the putative first notice, filed on June 27, 2012. The state argues, to the contrary, that the first notice was a nullity because it was brought in the name of a deceased person. The court agrees with the state. The Claims Commissioner properly rejected the putative first notice, and returned the filing fee, because the first notice was brought in the name of a deceased person as the claimant. A deceased person has no legal existence and therefore no capacity to file a notice of claim. See Noble v. Corkin, 45 Conn.Supp. 330, 332-33, 717 A.2d 301 (1998) (suit commenced against deceased defendant had to be dismissed because deceased person was " nonexistent entity"). Nor does it help that the first notice referred twice to the claimant's " estate." " An estate is not a legal entity. It is neither a natural or artificial person, but is merely a name to indicate the sum total of the assets and liabilities of the decedent or incompetent." (Internal quotation marks omitted.) Isaac v. Mount Sinai Hospital, supra, 3 Conn.App. 600.
In rejecting the first notice, the Claims Commissioner erroneously advised the decedent's attorney to file a claim in the name of the decedent's " estate." This advice was mistaken because, as Isaac held, an estate is not a legal entity. Only an executor or administrator is authorized to assert a wrongful death claim. General Statutes § 52-555. But, as events transpired, the mistaken advice made no difference, because no effective notice of claim was filed within the one-year limitation period imposed by § 4-148(a). The plaintiff's attorney hand-delivered the second notice on July 16, 2013, three days after the limitation period expired.
The plaintiff's reliance on Gurliacci v. Mayer, 218 Conn. 531, 546-47, 590 A.2d 914 (1991), as support for its claim that the untimely second notice related back to the timely but ineffective first notice is unavailing. In Gurliacci, a plaintiff sought to sue a fellow employee in relation to a motor vehicle accident. Id., 534. The defendant moved to dismiss, claiming the action was barred by the fellow employee rule of General Statutes § 7-465. Id., 536. Before ruling on the motion to dismiss, the trial court allowed the plaintiff to amend her complaint to allege the " wilful and malicious" exception to the fellow employee rule. Id., 536-37. On appeal, the defendant argued that the trial court had erred in considering the motion to amend before ruling on the motion to dismiss. Id., 542. The Supreme Court agreed, but held that the error was harmless because the motion to dismiss should have been denied. Id., 545. The Supreme Court concluded that the failure to allege an exception to the fellow employee rule did not implicate the trial court's subject matter jurisdiction, but merely the legal sufficiency of the plaintiff's complaint. Id. Questions of legal sufficiency should be addressed through motions to strike, not motions to dismiss. Since the trial court had jurisdiction and the original complaint alleged the essential elements of a cause of action, the Supreme Court concluded that the amendment could properly relate back to the original complaint. Id., 547.
In cases involving statutory waivers of sovereign immunity, in contrast, the Supreme Court has held that statutory notice and timing requirements are strictly construed and enforced. Indeed, the Supreme Court summarily rejected a " relation back" argument in a case brought under General Statutes § 13a-144, the statute that waives the state's sovereign immunity for claims involving defective highways. See Bresnan v. Frankel, 224 Conn. 23, 615 A.2d 1040 (1992). In Bresnan, the plaintiff had provided the Commissioner of Transportation with a timely notice of claim that was defective because it failed to identify the precise location of the highway defect. The trial court dismissed the plaintiff's action for insufficient notice. On appeal, the plaintiff argued that the subsequently filed complaint stated the actual location of the defect with greater precision. The Supreme Court disposed of this argument in a footnote, observing that " the plaintiff's complaint was not filed within the ninety days provided under the statute. Therefore, the complaint cannot be considered for the purposes of meeting the notice requirement." Id., 25 n.2.
In the present case, the Claims Commissioner properly rejected the putative first notice because it was not brought by a person or entity having the legal capacity to assert a wrongful death claim. It was therefore a legal nullity. Even if the second notice had properly identified the claimants as the co-administrators of Pedraza's estate--which it did not--there would have been nothing to which the second notice could have related back. Because it is undisputed that the second notice was untimely, the claim was time-barred, and the Claims Commissioner lacked the authority, under General Statutes § 4-148(a), to consider it. Where the commissioner lacks authority to grant permission to sue, the state's immunity is not waived. See Bloom v. Gershon, 271 Conn. 96, 114, 856 A.2d 335 (2004). Absent a proper waiver of sovereign immunity, this court lacks subject matter jurisdiction. Chief Information Officer v. Computers Plus Center, Inc., supra, 310 Conn. 96.
IV
The Motion to Substitute
In response to the state's motion to dismiss, the plaintiff filed a motion to substitute the co-administrators of Pedraza's estate as plaintiffs. The state argues that the court must decide the motion to dismiss before it can consider the motion to substitute. The court agrees.
In Isaac v. Mount Sinai Hospital, supra, 3 Conn.App. 598, the court addressed a similar question. In that case, the plaintiff was the daughter of a decedent who died while a patient at Mount Sinai Hospital in 1979. Id., 599. The plaintiff brought a timely wrongful death action, alleging that she had been appointed administratrix of the decedent's estate. At some time in 1982, she discovered that she had only been authorized to handle survivorship property and had not, in fact, been appointed administratrix. Id., 600. In early 1983, the defendants moved to dismiss the wrongful death action for lack of subject matter jurisdiction because the plaintiff had not complied with General Statutes § 52-555 by securing appointment as the administratrix before bringing the action. Id., 599. The plaintiff moved to amend her complaint to reflect that she had been duly appointed administratrix in September, 1982, and moved to be substituted, in her capacity as administratrix, as party plaintiff. Id., 600. The trial court granted the motion to dismiss before considering the motion to substitute. Id. The Appellate Court affirmed, stating: " The trial court correctly considered the defendants' motion to dismiss before reaching the plaintiff's request to amend and motion to substitute. When a question of jurisdiction is brought to the court's attention, that issue must be resolved before the court can move on to other matters." Id.
In more recent cases, including most recently Fairfield Merrittview Ltd. Partnership v. Norwalk, supra, 320 Conn. 552-53, the Supreme Court has held that defects in standing, although affecting the court's subject matter jurisdiction, can be cured by substitution of a proper party plaintiff under General Statutes § 52-109 even after a statute of limitations has expired. Although the plaintiff did not cite Fairfield Merrittview, the court has considered whether, in the circumstances of this case, that decision would allow the substitution of the co-administrators as plaintiffs in this action. The court also notes that, in cases not involving sovereign immunity, a number of trial courts have permitted the substitution of administrators or executors when an " estate" has erroneously been named as the plaintiff in a summons in a wrongful death action, but the complaint has properly identified the administrator or executor. See Estate of Smith v. Kenneth Otto Builders, LLC, Superior Court, judicial district of Hartford, Docket No. CV-07-5010481, (November 26, 2008, Wagner, J.T.R.) (stating that " [t]he broad policies set forth in Practice Book § 9-19 and § 9-20 favor the saving of actions where there has been mistakes in the naming of a party plaintiff); see also Estate of Bloomstone v. Gersten, Superior Court, judicial district of Hartford, Docket No. CV-05-4013778-S, (November 1, 2005, Miller, J.) (denying motion to dismiss where complaint identified co-administrators); Estate of Olsen v. Circa Builders, Inc., Superior Court, judicial district of Hartford, Docket No. CV-01-810306, (March 21, 2002, Wagner J.T.R.) (31 Conn.L.Rptr. 649) (holding that " a fair reading of the summons and complaint reveals no uncertainty as to the plaintiff in this case" where summons lists plaintiff as " Olsen, James, Estate of, " complaint states " plaintiff, James Olsen" and " Leona Olsen, Executrix of the Estate of James Olsen, " and also probate court certificate showing that Leona Olsen appointed executrix); Estate of Bakula v. Herman, Superior Court, judicial district of Litchfield, Docket No. 03992 (February 27, 1987, Aronson, J.) (noting that " [t]he writ, summons and complaint should be read together to determine the identity and capacity of a party" where summons and writ have various names but body of complaint makes clear that plaintiff is duly appointed administratrix in decedent's estate); Vasel v. Vasel, Superior Court, judicial district of Hartford, Docket No. CV-95-0556058, (September 17, 1996, Wagner, J.) (17 Conn.L.Rptr. 548) (holding that fair reading of complaint indicates that action instituted by named executrix of estate rather than by estate itself).
In the cases allowing substitution of administrators or executors for " estates, " the courts have emphasized that those fiduciaries had in fact been duly appointed and were identified in the complaint but had been erroneously omitted from the summons; there was no real doubt as to the presence of a proper party plaintiff. That is the case here with respect to the complaint, but not with respect to the notice of claim acted upon by the Claims Commissioner. The second notice referred to the claimant solely as the " Estate of Anthony Pedraza" and made no mention at all of any executor or administrator. The record before the Claims Commissioner did not support an inference that a duly appointed administrator or executor was presenting the claim.
As discussed in section III above, however, there were two jurisdictional flaws in the presentation of the claim to the Claims Commissioner: the failure to name the proper claimants and the failure to file a timely claim. Even if the failure to name the proper parties in a wrongful death claim can be a curable defect in some circumstances, the notice of claim on which the Claims Commissioner acted was untimely. Because statutes in derogation of sovereign immunity are strictly construed, the Claims Commissioner lacked authority under § 4-148 to consider the untimely claim.
In view of the court's conclusion that sovereign immunity was not waived by the Claims Commissioner's action on an untimely claim, the court lacks jurisdiction to consider the motion to substitute, which could, at best, address only one of the jurisdictional flaws. When a court concludes that it lacks jurisdiction, it should not then proceed to consider other claims. See Statewide Grievance Committee v. Rozbicki, 211 Conn. 232, 246, 558 A.2d 986 (1989) (" Once it becomes clear that the trial court lacked subject matter jurisdiction to hear the plaintiffs' complaint, any further discussion of the merits is pure dicta. Lacking jurisdiction, neither the trial court nor this court should deliver an advisory opinion on matters entirely beyond our power to adjudicate"); see also Zoning Commission of Brookfield v. Fairfield Resources Management, Inc., 41 Conn.App. 89, 105-06, 674 A.2d 1335 (1996) (discussing Rozbicki ). Accordingly, the motion to substitute is moot and must be dismissed.
V
Conclusion
The Claims Commissioner lacked authority to consider a claim presented after the time limit of General Statutes § 4-148 had expired. The Claims Commissioner's grant of permission to sue was not effective to waive sovereign immunity. Absent a proper waiver of sovereign immunity, this court lacks subject matter jurisdiction. The motion to dismiss is therefore granted.
The motion to substitute is dismissed as moot because the court lacks jurisdiction to consider it.
(a) Except as provided in subsection (b) of this section, no claim shall be presented under this chapter but within one year after it accrues. Claims for injury to person or damage to property shall be deemed to accrue on the date when the damage or injury is sustained or discovered or in the exercise of reasonable care should have been discovered, provided no claim shall be presented more than three years from the date of the act or event complained of. (b) The General Assembly may, by special act, authorize a person to present a claim to the Claims Commissioner after the time limitations set forth in subsection (a) of this section have expired if it deems such authorization to be just and equitable and makes an express finding that such authorization is supported by compelling equitable circumstances and would serve a public purpose. Such finding shall not be subject to review by the Superior Court. (c) No claim cognizable by the Claims Commissioner shall be presented against the state except under the provisions of this chapter.
(a) Whenever the Claims Commissioner deems it just and equitable, the Claims Commissioner may authorize suit against the state on any claim which, in the opinion of the Claims Commissioner, presents an issue of law or fact under which the state, were it a private person, could be liable. (b) In any claim alleging malpractice against the state, a state hospital or a sanitorium or against a physician, surgeon, dentist, podiatrist, chiropractor or other licensed health care provider employed by the state, the attorney or party filing the claim may submit a certificate of good faith to the Claims Commissioner in accordance with section 52-190a. If such a certificate is submitted, the Claims Commissioner shall authorize suit against the state on such claim.