Lillian Hill v. Ihsan Jabbour, M.D. et al. (2010)

MEMORANDUM OF DECISION RE MOTIONS TO DISMISS (# 116 & # 119) AND MOTION TO SUBSTITUTE (# 120)

Facts and Procedural History

The plaintiff, Lillian Hill, filed suit against Dr. Ihsan Jabbour, Midstate Medical Center, Hartford Health Care Corporation, Hartford Hospital, Dr. Dennis Laird and Connecticut Children's Medical Center, on behalf of her daughter, Juliann Hill. On March 8, 2010, Laird and Connecticut Children's Medical Center filed their motion to dismiss (# 116).   Subsequently, on March 11, 2010, Jabbour and Midstate Medical Center filed their motion to dismiss (# 119), incorporating and adopting the motion filed by Laird and Connecticut Children's Medical Center.   For the purposes of this memorandum of decision, “the defendants” will refer to Laird, Connecticut Children's Medical Center, Jabbour and Midstate Medical Center.

The plaintiff filed a motion to substitute (# 120) on March 12, 2010.   The plaintiff's March 12, 2010 objection was in response to the motion to dismiss filed by Laird and Connecticut Children's Medical Center.   The plaintiff also filed an objection on March 16, 2010, in response to the motion to dismiss filed by Jabbour and Midstate Medical Center.   The defendants filed objections to the plaintiff's motion to substitute on March 26, 2010, and on April 1, 2010.   In this memorandum of decision, the court will address the defendants' motions to dismiss (# 116 & # 119) and the plaintiff's motion to substitute (# 120).

Discussion

“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.)  Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007).  “The issue of standing implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss.”  St. George v. Gordon, 264 Conn. 538, 544, 825 A.2d 90 (2003).

The defendants argue that they are entitled to dismissal because the named plaintiff on the summons and complaint is “Lillian Hill, PPA Juliann Hill” and the plaintiff cannot maintain an action in her own name to recover damages for injuries sustained by her daughter.   The plaintiff moves to substitute “Juliann Hill, PPA Lillian Hill” for “Lillian Hill, PPA Juliann Hill” pursuant to General Statutes § 52-109, which provides:  “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.”   See also Practice Book § 9-20.¹  The plaintiff argues that the defendants' motions to dismiss should be denied if she is permitted by the court to make this substitution.

In Fotheringhame v. New Haven, Superior Court, judicial district of New Haven, Docket No. CV 06 5007577 (June 7, 2007, Robinson, J.), the court noted that the Appellate Court has yet to address whether a trial court must grant a motion to dismiss when an action is commenced incorrectly in the name of the parent on behalf of a minor child, rather than in the name of the minor child PPA the parent, without first considering a pending motion to substitute.   More significantly, the court noted that this issue has yielded two separate and distinct lines of Superior Court decisions.   The first line of cases follows the reasoning articulated in LaChance v. Waterbury, Superior Court, judicial district of Waterbury, Docket No. CV 98 0148936 (August 22, 2001, Doherty, J.) (30 Conn. L. Rptr. 245, 246-47), relied upon by the defendants in the present case, which concluded that an action must be dismissed if it is commenced in the name of the adult rather than the child for injuries alleged to have been sustained by the child.   The second line of cases follows the reasoning articulated in Wilson v. Zemba, 49 Conn.Sup. 542, 554-55, 896 A.2d 862 (2004), relied upon by the plaintiff in the present case, which concluded that a court may properly consider a motion to substitute to correct the misnaming of a parent as the plaintiff, prior to ruling on the subject matter jurisdiction issues raised in a motion to dismiss.

The Fotheringhame court reasoned that:  “Though these two lines of decisions appear to be in conflict with each other, they may, in fact, be reconcilable.   The line of decisions which conclude that the court must grant a motion to dismiss when an adult is incorrectly named as a plaintiff, rather than a minor-child, do not address whether or not a motion to substitute a party-plaintiff had been filed pursuant to § 52-109.   Of course, in the absence of such a motion to substitute a party-plaintiff pursuant to § 52-109, a court would be required, only, to determine the jurisdiction issues presented when an adult/parent is improperly named as a party-plaintiff.”   Superior Court, Docket No. CV 06 5007577.   The court ultimately concurred with the reasoning in Wilson v. Zemba, supra, 49 Conn.Sup. 554-55, and then determined whether substitution was appropriate, under § 52-109, by engaging in a two-part analysis.   See id.

First, the court determined that the incorrect party was named by mistake.   In doing so, the court stated:  “[M]istake is not defined in § 52-109.   The court in [DiLieto v. County Obstetrics and Gynecology Group, Superior Court, complex litigation docket at Waterbury, Docket No. X02 CV 97 150435 (January 31, 2000, Sheldon, J.) (26 Conn. L. Rptr. 345, 350-51) ], notes that there is no legislative history and proceeds to analyze what the word was taken to mean in analogous common law and statutory provisions meant to ameliorate other harsh pleading dictates at common law ․ [The DiLieto court] infers that the words ‘through mistake’ in § 52-109 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.’  ․ Applying the appropriate and relevant jurisprudence to facts analogous to those in this case, the Wilson v. Zemba court concluded that [u]sing the § 52-109 tests as to the first requirement-of course there was a mistake ․ The body of the complaint itself ․ refers ․ to the child ․ as the plaintiff who was injured while the summons refers to the father as the plaintiff.”  (Citation omitted;  internal quotation marks omitted.)  Id.

Next, the court determined that substitution was required in order to determine the real matter in dispute.  “Where substitution is necessary for the determination of the real matter in dispute, the issues of substitution may be addressed under the reasoning that the courts should liberally interpret the rules of practice in any case where it shall be manifest that a strict adherence to them would work injustice ․ The rules of practice are to be construed so as to alter the harsh and inefficient result that attached to the mispleading of parties at common law ․ Moreover, [a]s long as [the] defendant is fully apprised of a claim arising from specified conduct and has prepared to defend the action, his ability to protect himself will not be prejudicially affected ․ Thus, if the defendant has notice of the conduct that gave rise to the claims and substitution is necessary to determine the real matter in dispute, a motion to substitute may be granted over a motion to dismiss.”   (Citations omitted;  internal quotation marks omitted.)  Id.

In sum, the Fotheringhame court recognized a split amongst decisions of the Superior Court as to whether a defendant is entitled to dismissal when an action is commenced in the name of the parent on behalf of a minor child, rather than in the name of the minor child PPA the parent, without first considering a pending motion to substitute.   Then, the court agreed with the line of cases which hold that a court may properly consider a motion to substitute to correct the misnaming of a parent as the plaintiff, prior to ruling on the subject matter jurisdiction issues raised in a motion to dismiss.   Finally, the court engaged in a two-part analysis to determine whether substitution was appropriate under § 52-109.

This court agrees and adopts the Fotheringhame court's analysis of this issue.   This court may properly consider the plaintiff's motion to substitute, pursuant to § 52-109, in order to correct the misnaming of Lillian Hill as the plaintiff, prior to ruling on the subject matter jurisdiction issues raised by the defendants' motions to dismiss.   The court must first determine whether the incorrect party, Lillian Hill, was named by mistake.   The summons and heading of the complaint name “Lillian Hill, PPA Juliann Hill” as the plaintiff in this action.   The body of the complaint, however, alleges that “Lillian Hill is bringing this action as guardian and parent on behalf of Juliann Hill, a minor.”   Throughout the body of the complaint, Juliann Hill is repeatedly and consistently referred to as “the plaintiff.”   It is clear that the claims are predicated upon the defendants' alleged negligent treatment and care of Juliann Hill. Therefore, this court concludes that Lillian Hill was listed as the party plaintiff by mistake.

Next, the court must determine whether substitution is appropriate to determine the real matter in dispute.   Here, the court is satisfied that the defendants are fully apprised of the specific conduct that gave rise to the claims in the complaint.   The defendants' ability to prepare a defense is not prejudicially affected by the misnaming of Lillian Hill as the plaintiff.   Substitution of “Juliann Hill, PPA Lillian Hill” for “Lillian Hill, PPA Juliann Hill” is necessary to determine the real matter in dispute:  whether the defendants were negligent in their treatment and care of Juliann Hill.

Given that the court grants the plaintiff's motion to substitute under § 52-109, it need not address whether General Statutes § 52-123 is applicable to the present case.²

Conclusion

The plaintiffs motion to substitute (# 120) is granted.   As a result, the defendants' motions to dismiss (# 116 & # 119) for lack of subject matter jurisdiction are denied.

Wilson, J.

FOOTNOTES

FN1. Section 9-20 provides:  “When any action has been commenced in the name of the wrong person as plaintiff, the judicial authority may, if satisfied that it was so commenced through mistake and that it was necessary for the determination of the real matter in dispute so to do, allow any other person to be substituted or added as plaintiff.”.  FN1. Section 9-20 provides:  “When any action has been commenced in the name of the wrong person as plaintiff, the judicial authority may, if satisfied that it was so commenced through mistake and that it was necessary for the determination of the real matter in dispute so to do, allow any other person to be substituted or added as plaintiff.”

FN2. Section 52-123 states:  “No writ, pleading, judgment or any kind of proceeding in court or course of justice shall be abated, suspended, set aside or reversed for any kind of circumstantial errors, mistakes or defects, if the person and the cause may be rightly understood and intended by the court.”.  FN2. Section 52-123 states:  “No writ, pleading, judgment or any kind of proceeding in court or course of justice shall be abated, suspended, set aside or reversed for any kind of circumstantial errors, mistakes or defects, if the person and the cause may be rightly understood and intended by the court.”

Wilson, Robin L., J.