Monique Smith v. James Baumann et al. (2010)

MEMORANDUM OF DECISION RE MOTION TO DISMISS (# 103)

FACTS

On May 13, 2010, the plaintiff, Monique Smith, filed a two-count complaint against the defendants James Baumann and Hartford Fire Insurance Company.   In count one of her complaint, the plaintiff alleges the following facts.   On May 14, 2008, she “sustained or exacerbated injuries of a serious and permanent nature” when the motor vehicle she was driving was struck forcefully by a motor vehicle operated by the defendant, Baumann.   The plaintiff's injuries and damages were caused by Baumann's negligence.

In count two of her complaint, the plaintiff alleges the following facts.   On May 14, 2008, she was operating a motor vehicle owned by Greater New Haven Transit District.   An unidentified motorist steered his or her vehicle in such a manner as to cause Baumann to turn to the left to avoid it, thus causing Baumann to collide forcefully with the plaintiff's motor vehicle.   The plaintiff sustained injuries and damages from the collision, which were caused by the unidentified motorist's negligence.   The unidentified motorist fled the scene of the accident.   Therefore, Hartford Fire Insurance Company is liable under the uninsured motorist policy it provided to Greater New Haven Transit.

On June 8, 2010, counsel entered an appearance on behalf of Baumann.¹  On June 25, 2010, Baumann filed a motion to dismiss count one of the complaint on the grounds that he died on June 2, 2008, and service of process was not attempted to be made upon him until April of 2010.   Baumann alleges that the court therefore lacks subject matter jurisdiction over him.   The motion is accompanied by a memorandum of law and Baumann's death certificate, which states that he died on June 2, 2008.   On July 7, 2010, the plaintiff filed an objection to Baumann's motion to dismiss and an accompanying memorandum of law.   The matter was heard at short calendar on July 12, 2010.

DISCUSSION

Practice Book § 10-30 provides in relevant part:  “Any defendant, wishing to contest the court's jurisdiction, may do so even after having entered a general appearance, but must do so by filing a motion to dismiss within thirty days of the filing of an appearance ․” Practice Book § 10-31(a) provides in relevant part:  “The motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter ․” “Any claim of lack of jurisdiction over the subject matter cannot be waived;  and whenever it is found after suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the judicial authority shall dismiss the action.”  Practice Book § 10-33.  “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.”  (Internal quotation marks omitted.)  Bacon Construction Co. v. Dept. of Public Works, 294 Conn. 695, 706, 987 A.2d 348 (2010).  “Subject matter jurisdiction [implicates] the authority of the court to adjudicate the type of controversy presented by the action before it ․ [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction ․” (Internal quotation marks omitted.)  Burton v. Commissioner of Environmental Protection, 291 Conn. 789, 802, 970 A.2d 640 (2009).  “Once the question of subject matter jurisdiction has been raised, cognizance of it must be taken and the matter passed upon before [the court] can move one further step in the cause;  as any movement is necessarily the exercise of jurisdiction.”   (Internal quotation marks omitted.)  Schaghticoke Tribal Nation v. Harrison, 264 Conn. 829, 839 n.6, 826 A.2d 1102 (2003).

“[T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n.12, 829 A.2d 801 (2003).  “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.”   (Internal quotation marks omitted.)  Conboy v. State, 292 Conn. 642, 651, 974 A.2d 669 (2009).  “In contrast, if the complaint is supplemented by undisputed facts established by affidavits submitted in support of the motion to dismiss ․ 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;  internal quotation marks omitted.)  Id., 651-52.

In his motion to dismiss, Baumann has moved to dismiss count one of the complaint.   In his memorandum in support of the motion, Baumann argues that the court lacks “subject matter/jurisdiction” over him because the court lacks jurisdiction over any claim brought against a deceased defendant.   In her memorandum in opposition to the motion to dismiss, the plaintiff counters that she served process on Baumann “at the usual place of abode of the deceased [d]efendant,” and alleges that the certificate of death attached to the motion to dismiss was the first notification she received of Baumann's death.   The plaintiff states the issue as being:  “Whether leaving the original [w]rit [s]ummons and [c]omplaint at the usual place of abode of a defendant, unknown to be deceased at the time of service, amounts to a dismissible action for insufficient process and insufficient service of process under Connecticut Practice Book § 10-31(a)?”   The plaintiff does not dispute Baumann's date of death.

“A judgment in an action begun and prosecuted against a defendant who is dead when it was begun, is null and void ․” O'Leary v. Waterbury Title Co., 117 Conn. 39, 47, 166 A. 673 (1933).  “By its very terms, an action at law implies the existence of legal parties;  they may be natural or artificial persons, but they must be entities which the law recognizes as competent ․ [A] dead person is a nonexistent entity and cannot be a party to a suit.   Therefore, proceedings instituted against an individual who is deceased at the time of the filing of suit are a nullity.   Such proceedings are void ab initio and do not invoke the jurisdiction of the trial court.”  (Citation omitted;  internal quotation marks omitted.)  Noble v. Corkin, 45 Conn.Sup. 330, 332-33, 717 A.2d 301 [21 Conn. L. Rptr. 547] (1998).

“In several decisions, the judges of the Superior Court have held that the issue of whether a court has jurisdiction over an action that was commenced against a deceased defendant pertains to the court's subject matter jurisdiction, and not to its personal jurisdiction over the defendant ․” (Citations omitted.)   Heard v. Stella, Superior Court, judicial district of New London, Docket No. 5000479 (September 10, 2007, Hurley, J.T.R.) [44 Conn. L. Rptr. 115].   See Fotheringhame v. New Haven, Superior Court, judicial district of New Haven, Docket No. CV 06 5007577 (June 7, 2007, Robinson, J.) (granting motion to dismiss count three for lack of subject matter jurisdiction, which count named defendant who had died before action was initiated);  Turner v. Pivarzyk, Superior Court, judicial district of Hartford, Docket No. CV 06 5007862 (June 1, 2007, Wiese, J.) (granting motion to dismiss counts one and two for lack of subject matter jurisdiction where defendant was deceased when action was commenced);  Heath v. Aparo, Superior Court, judicial district of New Britain, Docket No. CV 05 5000427 (February 24, 2006, Shapiro, J.) (in granting motion to dismiss personal injury suit where abode “service” of process was made after defendant's death, court observed “[s]ince this proceeding was void ab initio, the court lacks subject matter jurisdiction” [emphasis in original] ).

In the present case, it is undisputed that Baumann died on June 2, 2008.   Service of process was not attempted to be made upon him until April of 2010.   The plaintiff's implication that the matter is one of personal jurisdiction is incorrect.   Count one against Baumann was void ab initio, and therefore the court lacks subject matter jurisdiction.

The plaintiff argues further that the court should substitute “the [d]efendant's estate for the [d]efendant as a party to this lawsuit” by following “common law discretion under a good cause standard, rather than the statutory limitations of General Statutes § 52-599.   In this case the [d]efendant was alive when the cause of action arose and thus there was a right of action to be saved.”

“Although at common law the death of a sole plaintiff or defendant abated an action ․ by virtue of [General Statutes] § 52-599;  Connecticut's right of survival statute, a cause of action can survive if a representative of the decedent's estate is substituted for the decedent.”  (Citation omitted.)   Burton v. Browd, 258 Conn. 566, 570-71, 783 A.2d 457 (2001).²  “General Statutes § 52-599 does not operate to save [actions commenced against decedents] in order to allow for the substitution of a decedent's executor or administrator, because that statute applies when a party dies during the suit, rather than prior to the institution of the suit.”   Jones v. Lawler, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 99 0174667 (February 14, 2002, Adams, J.) [31 Conn. L. Rptr. 416].   See also Noble v. Corkin, supra, 45 Conn.Sup. 333 (“[s]tatutes of this description apply when a party dies after commencement of the action”).

“[S]ubstitution of the decedent's estate would be inappropriate where the decedent was not properly a party to the suit.”  Freeman v. Brown, Superior Court, judicial district of New London, Docket No. 4003549 (June 13, 2006, Hurley J.T.R.).   See Hylton v. Dibrino, Superior Court, judicial district of New Haven, Docket No. CV 10 6007217 (July 26, 2010, Robinson, J.) (granting motion to dismiss claims against defendant who had died prior to initiation of action, and declining to substitute administrator of decedent's estate because § 52-599 did not apply to facts in case);  Rodriguez v. Danek, Superior Court, judicial district of New Britain, Docket No. CV 04 4001947 (September 14, 2005, Shaban, J.) [40 Conn. L. Rptr. 25] (granting motion to dismiss despite prior grant of “Motion to Substitute Executor as Party Defendant” because § 52-599 inapplicable to individual who had died prior to commencement of action);  Avila v. Eannuzzi, Superior Court, judicial district of Fairfield, Docket No. CV 00 375239 (December 21, 2001, Rush, J.) [31 Conn. L. Rptr. 200] (granting motion to dismiss where defendant died prior to commencement of suit, stating “because the court decides that it does not have jurisdiction, it also lacks power to grant the plaintiff's motion to substitute or to cite in the decedent's executor”).

The plaintiff's assertion that common law provides for substitution of Baumann's estate in his place, despite the fact that § 52-599 is inapplicable, is unsupported by a review of relevant case law.   Baumann died before initiation of the action, and thus was never properly a party to the suit.   There is no action against him that may be continued through substitution.   Furthermore, the fact that Baumann was alive when the cause of action arose is immaterial as to whether there is an action to be saved.   The determinative question is whether a defendant was alive at the time an action was initiated.

Finally, at oral argument the plaintiff argued that she should be allowed to substitute Baumann's estate for Baumann in the interest of judicial economy, because otherwise she will proceed under the accidental failure of suit statute, § 52-592.  “It may be that this case can be saved under General Statutes § 52-592, the accidental failure of suit statute;  see Contadino v. Devito, 71 Conn.App. 697 (2002);  but that possibility cannot be used to stave off the present motion to dismiss.”   Esposito v. Smyth Farm Corners Assn., Inc., Superior Court, judicial district of Hartford, Docket No. CV 03 0822295 (August 1, 2003, Wagner, J.T.R.) [35 Conn. L. Rptr. 254].   See also Freeman v. Brown, supra, Superior Court, Docket No. 4003549 (“[t]he court is not at liberty to allow this substitution ․ because ‘any future action brought by the plaintiff[s] under § 52-592 is not before the court’ ”).   Likewise, this court is not at liberty to allow such a substitution.   For the foregoing reasons, the motion to dismiss count one of the complaint is granted.

Wilson, J.

FOOTNOTES

FN1. References to Baumann shall refer to counsel for this deceased party..  FN1. References to Baumann shall refer to counsel for this deceased party.

FN2. General Statutes § 52-599 provides in relevant part:  “(a) 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.”“(b) 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 ․”.  FN2. General Statutes § 52-599 provides in relevant part:  “(a) 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.”“(b) 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 ․”

Wilson, Robin L., J.