Opinion
No. CV10-5033214 S
January 5, 2011
MEMORANDUM OF DECISION ON MOTIONS TO DISMISS
In this case a malpractice action has been brought against the estate of a deceased attorney, Thomas Staley, and another lawyer, Attorney Mark Pearson, who was engaged by the deceased lawyer to provide legal services to clients in an accident case.
Motions to dismiss have been filed by each defendant which raise similar arguments. The court will discuss the factual background on which the motions rest.
The malpractice plaintiff alleges that in March 2005 his wife suffered injuries as a result of a slip and fall. The plaintiff alleges that as a result of the accident his wife could no longer provide him care necessitated by his heart condition.
The plaintiff alleges that in the month of the accident he consulted with Attorney Staley his wife's claims and Staley said he would handle the matter. Attorney Staley then caused suit to be brought against the party which controlled the premises where Mrs. Vecchio fell; suit was brought through Attorney Pearson. The suit by Mrs. Vecchio against Trolley Crossing Condominium Association is still pending.
The plaintiff claims that at the time he discussed his wife's situation with Staley, Attorney Staley did not "mention or discuss with the plaintiff or the plaintiff's wife that the plaintiff had a cause of action for loss of consortium because of the wife's accident" (first count, par. 12). The plaintiff also claims that Attorney Pearson's failure to include a loss of consortium claim in the action by Mrs. Vecchio was a negligent breach of Attorney Pearson's third-party beneficiary agreement with Attorney Staley, (second count, par. 11-13.)
Both defendants have now brought a motion to dismiss against the malpractice claims pursuant to Practice Book § 10-31 for lack of subject matter jurisdiction. The court will now discuss the basis of the claims.
(1)
The motions argue that the claims made are not justiciable. Basically, as said in Bloom v. Miklovich, 111 Conn.App. 323, 336 (2008) "The general rule is that a case is, justiciable if it is capable of resolution on the merits by judicial action," Pellegrino v. O'Neill, 193 Conn. 670, 673 (1984). This court does not have jurisdiction to resolve a controversy that is not ripe for adjudication, see George v. Watertown, 85 Conn.App. 606, 612 . . . cert denied 272 Conn. 911 (2004).
To put it more simply justiciability has been defined as "the quality or state of being appropriate or suitable for adjudication by a court," Black's Law Dictionary, Ninth Ed. In 13 Charles Alan Wright, Federal Practice and Procedure § 3529, at pp. 278-79 it notes that: "Concepts of justiciability have been developed to identify appropriate occasions for judicial action . . . The central concepts often are elaborated into more specific categories of justiciability — advisory opinions, argued and collusive cases, standing, ripeness, political questions, and administrative questions."
When the foregoing are involved the case is not justiciable, thus for example a matter is not justiciable where the issue the case presents is moot, George M. v. Commissioner of Correction, 122 Conn.App. 832, 836 (2010), presents a political question Coalition for Justice in Education Funding v. Rell, 295 Conn. 240, 253 (2010) or it is not ripe for adjudication Hamilton v. U.S. Auto Assn., 115 Conn.App. 774, 782 (2009). As to "ripeness" the court has said "the rationale behind the ripeness requirement is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements (and we therefore) must be satisfied that the case before (us) does not present a hypothetical injury or claim contingent upon some event that has not and indeed may never transpire," Office of the Governor v. Select Committee of Inquiry, 271 Conn. 540, 570 (2004).
Simply put a case is not justiciable if it is not capable of being resolved by a court to which it is presented. To enforce this position and the principles behind the foregoing case law the court has said that "in the absence of a justiciable controversy the courts have no jurisdiction," Kleinman v. Marshall, 192 Conn. 479, 484 (1984) and it has established a test for justiciability — (1) there must be an actual controversy between the parties (2) the parties' interests must be adverse (3) the matter must be capable of being adjudicated by the court and (4) the determination of the controversy will result in practical relief to the plaintiff, Pellegrino v. O'Neill, supra, 193 Conn. at page 674.
A plaintiff in a legal malpractice action "must establish (1) the existence of an attorney client relationship (2) the attorney's wrongful act or omission (3) causation and (4) damages." 4 Mallen Smith, Legal Malpractice, (4th ed. 1996). Specifically here, the plaintiff must establish that the failure to make a loss of consortium claim caused the plaintiff husband harm, Grayson v. Wofsey, 231 Conn. 168, Mallen at pp. 174-75. As the court said in Chapman Lumbar Co. v. Tager, 288 Conn. 69, 86-87 (2008); "Pursuant to Connecticut's ripeness jurisprudence, as long as it is clear that the plaintiff has suffered an injury sufficient to give rise to the cause of action alleged, a lack of certainty as to the precise scope of damages will not prevent the claim from being justiciable" — here even that flexible prerequisite cannot be met because it cannot be determined that any damages have been suffered. And this follows from the very fact that a loss of consortium claim is derivative in nature.
To approach the problem from another perspective the case of Fontanella v. Marcucci, 89 Conn.App. 690 (2005) is instructive. There the plaintiffs had brought a products liability action as a result of injuries allegedly caused by a defective seatbelt. They then brought a legal malpractice action claiming their lawyers were negligent in advising one of the plaintiffs to sell the vehicle to her insurer which then destroyed the vehicle making inspection of its seatbelts impossible, whose alleged defect formed the basis of the product liability action. The legal malpractice action was dismissed twice as premature and nonjusticiable due to the pendency of the product liability action. The third legal malpractice action was brought before the Fontanella court in 2001 and before the court was the issue of whether this action was barred by the statute of limitation. The court at page 701 said:
the issues of causation and damages in the malpractice claim and damages in the contract claim could not be resolved during the pendency of the underlying product liability action. We conclude that the plaintiffs could not obtain a remedy in the legal malpractice case until there was a final judgment in the underlying case and that under Cperzanowski v. New Britain, 183 Conn. 88 (1998), the statute of limitation in the malpractice case must toll.
In effect the court held until the underlying case was disposed of the malpractice case was not ripe for adjudication. As Fontanella pointed out the decision in Mayer v. Biafore, Florek O'Neill, 245 Conn. 88 (1998) does not indicate a contrary result and only said that in all cases adjudication of the underlying claim was not required. In Mayer the malpractice action was based on the attorney's failure to file an action against the insurer for uninsured motorist benefits. There the trier of fact, hearing the malpractice claim, must of necessity have had to determine whether the uninsured motorist action was time barred — to require a separate determination in another action that the action before the court was time barred would unduly restrict the "plaintiff's remedy against an already negligent lawyer." Id. 89 Conn. page 703. The Mayer case is not the case before the court; the plaintiff's action, derivative in nature, does not represent a claim resting on anything to do with the negligent initiation or handling of the underlying claim by Mrs. Vecchio herself in the underlying case against the defendant condominium as it was brought. There is no factual or legal issue common to both cases.
Also, at least to the court, the plaintiff's attempts to avoid dismissal, besides a reliance on Mayer are also unavailing. A suggestion is made that what should really happen here is that the plaintiff's malpractice claim should be consolidated with Mrs. Vecchio's negligence claim. This would result in judicial economy and would be the fairest approach. There are a variety of problems with this suggestion. First, the court would note that it was the trial court reversed in FDIC v. Peabody, 239 Conn. 93 (1996). The Supreme Court held that once an issue of subject matter jurisdiction is raised, a trial court must immediately resolve it without, as this court did, try to save the litigation by allowing a motion to amend, — or the court might add accepting the suggestion advanced by the plaintiff's lawyer here by resorting to other procedural devices such as a motion to consolidate. Furthermore, how would consolidation be fair to everyone involved in the legal situation presented? How would Mrs. Vecchio's action proceed — presently there is no loss of consortium claim. Why should the defendant condominium have to cope with the spectre of a jury being presented with the court assumes is sympathetic testimony on a consortium issue? What is envisaged, two separate juries? Having the one jury hear the damages associated with the loss of consortium claim after a verdict is rendered in favor of Mrs. Vecchio? There is no judicial economy in that and such a procedure only underlines the fact that at the present time the malpractice claim is not ripe for adjudication.
As to the goal of advancing the possibility of global settlement negotiations if the wife's and the plaintiff's suit are consolidated, this cannot be a reason for finding subject matter jurisdiction which is otherwise absent. Perhaps more to the point the plaintiff's suit would be dismissed but the statute of limitations on bringing the action is tolled, see Fontanella, supra at 89 Conn.App. Page 697 and its procedural history, also see Katz v. Kucez, 2005 WL 3047067, 2005, (Thompson, J.) The opportunity and motive for settlement discussions still exists.
The plaintiff also speculates about conflicts that "the attorneys employed by the insurance companies to represent the defendants may have to deal with . . ." Depending on the wording of the policies the motions to dismiss "may benefit the insurance company and be harmful to their clients. If the scenario has merit, the potential for problems will be avoided by denying the Motion to Dismiss and granting the Motion to Consolidate." The argument is based on speculation and hypotheticals since the policies were not produced, the court certainly will not assume defense counsel would do anything to harm their clients' interests, and, in any event, such an imagined problem will not allow a finding of subject matter jurisdiction where none exists.
In American Premier Underwriters, Inc. v. National Railroad Passenger Corp., 47 Conn.App. 384, 390 (1997) the court said: "`Whenever the absence of jurisdiction is brought to the notice of the court or tribunal, cognizance of it must be taken and the matter passed upon before it can move one step further in the cause; as any movement is necessarily the exercise of jurisdiction.' Sivilla v. Philips Medical Systems of North America, 46 Conn.App. 699, 703 . . . (1997) quoting Second Injury Fund v. Lupachino, 45 Conn.App. 324, 330 . . . 1997. As a result the court was required to address the jurisdictional challenge before ruling on other motions and, once it decided that it lacked subject matter jurisdiction, it was bound and required to dismiss the case. See Statewide Grievance Committee v. Rozbicki, 211 Conn. 232, 245-46 . . . (1989)."
Based on the foregoing the motion to dismiss by each defendant is granted.