Laureen Torla v. Stephen Torla (2011)

MEMORANDUM OF DECISION RE MOTION TO DISMISS

The undersigned, having carefully reviewed the relevant statutes, Practice Book sections, case law and the parties' legal briefs, and having carefully considered the oral arguments of counsel, finds the following facts and issues the following order.

Laureen and Stephen Torla's marriage was dissolved via judgment entered on October 15, 1999.   Pursuant to a provision in that dissolution decree, Stephen Torla was ordered to maintain life insurance for the benefit of his minor children so long as he was obligated to pay child support.   Following the entry of the judgment containing the aforementioned order, Joan Dulski was given power of attorney by Stephen Torla, who then died on December 13, 2010.

On or about August 18, 2011, the plaintiff brought an application for Order to Show Cause against Joan Dulski and Crown Life Insurance Company, alleging that, on or about September 22, 2010, Ms. Dulski improperly transferred ownership of the life insurance policy to herself and made herself primary beneficiary of the policy.   In the order, the plaintiff seeks to have the court find Ms. Dulski in contempt for her alleged actions.   At no time prior to the filing of the Order was Ms. Dulski or Crown Life Insurance Company made a party to the instant action.

On or about September 9, 2011, Ms. Dulski filed a motion to dismiss the Order To Show Cause, pursuant to Practice Book Sec. 25–13(a)(1) because the court lacks subject matter jurisdiction due to the death of the defendant Stephen Torla and the failure of the plaintiff to substitute a representative of the decedent defendant's estate for the defendant in the instant action, as required by Connecticut General Statutes Sec. 52–599.   The plaintiff has objected to the Motion to Dismiss.

Section 52–599 states, 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.   If a party plaintiff dies, his executor or administrator may enter within six months of the plaintiff's death or at any time prior to the action commencing trial and prosecute the action in the same manner as his testator or intestate might have done if he had lived.   If a party defendant dies, the plaintiff, within one year after receiving written notification of the defendant's death, may apply to the court in which the action is pending for an order to substitute the decedent's executor or administrator in the place of the decedent, and, upon due service and return of the order, the action may proceed.

(Emphasis added.)

“Although at common law, the death of a sole plaintiff or defendant abated an action ․ by virtue of C.G.S. Sec. 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.   It is a well established principle, however, that during the interval ․ between the death and the revival of the action by the appearance of the executor or administrator, the court has no vitality.   The surviving party and the court alike are powerless to proceed with it.”  Burton v. Browd, 258 Conn. 566, 783 A.2d 457 (2001).

While the plaintiff may attempt to preserve or revive the cause of action pursuant to the provisions of Sec. 52–599, she has not yet chosen to do.   Absent compliance with the statutory requirements as indicated aforesaid, the court does not have subject matter jurisdiction.

The motion to dismiss is granted.

GOULD, J.

Gould, Mark T., J.