Joseph Selvidio v. Alfa Laval, Inc. et al. (2012)

MEMORANDUM OF DECISION RE MOTION TO SUBSTITUTE FIDUCIARY AS PLAINTIFF (Motion # 313.00)

This action arises out of the alleged exposure of the decedent, Joseph Selvidio, to various asbestos-containing products from his employment as a plant worker during the years 1973 to 1979.   The complaint alleges that the decedent was exposed to, and inhaled and/or ingested, asbestos fibers and particles from various asbestos-containing products, which contributed to the decedent's mesothelioma and other asbestos-related pathologies.   The plaintiff alleges that the various defendants were responsible for the decedent's injuries.   By way of a sixth amended complaint, filed on November 13, 2012, the plaintiff, Michael Selvidio, as executor of the estate of Joseph R. Selvidio, alleges four counts against multiple defendants, including the present defendant, Skansa USA Building, Inc.

The original plaintiff, Joseph Selvidio, commenced this action on March 11, 2011.   As a result of Joseph Selvidio's death on November 10, 2011, the plaintiff filed a motion to substitute a party plaintiff, Michael Selvidio, in his capacity as executor to the estate of Joseph Selvidio.   At the time of his death, the decedent was a resident of Westerly, Rhode Island and Michael Selvidio had been appointed as executor of Joseph Selvidio's estate by the “Court of Probate, Town of Westerly, State of Rhode Island.”   The plaintiff attached a copy of the certificate of appointment to his motion to substitute the fiduciary as a plaintiff.

After the plaintiff filed his initial motion to substitute the estate, the defendant argued that the plaintiff lacked the capacity to sue because he had failed to obtain ancillary letters of administration from Connecticut.   The court then raised the issue of subject matter jurisdiction sua sponte and ordered the parties to brief the issue as it related to the plaintiff's capacity to bring an action in Connecticut.¹  On September 28, 2012, the plaintiff filed another motion to substitute the fiduciary as plaintiff, accompanied by ancillary administration documents issued by a court of probate located in the state of Connecticut.

The parties appeared for argument at the October 1, 2012 asbestos calendar.   At oral argument, the defendant raised a second issue related to subject matter jurisdiction.   The defendant, acknowledging that the plaintiff had filed the appropriate ancillary administration documents, now contested the court's jurisdiction to address the plaintiff's actual motion to substitute the fiduciary as a party plaintiff and/or the defendant's previously-filed motions for summary judgment.

This court has previously aligned itself with decisions of the Superior Court allowing a court to address a motion to substitute while an issue of subject matter jurisdiction is pending before a court.   See Dragonette v. Maryca Enterprises, Superior Court, judicial district of Ansonia–Milford at Derby, Docket No. CV 09 5009735 (September 15, 2010, Bellis, J.) (50 Conn. L. Rptr. 624), and cases cited therein.   The court finds no reason to deviate from that position with respect to the present case.   Accordingly, the court will reach the merits of the plaintiff's present motion to substitute Michael Selvidio as a fiduciary.

The court recognizes that the facts presented in this action do not fall within the usual parameters of a case governed by General Statutes § 52–109, the statute governing the substitution of a plaintiff.   The standard set forth in that statute, however, is helpful to the court in deciding the plaintiff's motion to substitute the fiduciary.  Section 52–109 provides in pertinent part that a person may be substituted as a plaintiff when “it is necessary for the determination of the real matter in dispute ․” This matter was commenced in the name of the proper plaintiff, Joseph Selvidio, and, upon the death of Joseph Selvidio, Michael Selvidio was substituted in his capacity as the executor of Joseph Selvidio's estate, albeit without letters of ancillary administration from a probate court in the state of Connecticut.   Now, the plaintiff has filed the proper documentation.   The court finds that the estate is a party necessary to enable the court to determine the real matter in dispute and the defendant has failed to demonstrate any prejudice.   Accordingly, the court grants the plaintiff's motion to substitute the fiduciary as a plaintiff.

FOOTNOTES

FN1. “The qualification of an administrator or executor in a foreign jurisdiction does not, as such, give him the right to administer upon assets here, or to sue to recover a debt due here.   He must first take out ancillary administration.”  Equitable Trust Co. v. Plume, 92 Conn. 649, 654, 103 A. 940 (1918).   A failure to obtain the appropriate ancillary administration documents impacts a party's capacity to bring suit in this jurisdiction.   This court is aware that, under certain circumstances, a lack of capacity to bring suit implicates a party's standing and, accordingly, the subject matter jurisdiction of a court.   See Litvak v. Artusio, 137 Conn.App. 397, 49 A.3d 762 (2012) (court dismissed case for lack of subject matter jurisdiction because party lacked standing to sue in representative capacity where summons identified party in individual capacity and pleadings identifying her as executrix of estate not automatically bestow standing)..  FN1. “The qualification of an administrator or executor in a foreign jurisdiction does not, as such, give him the right to administer upon assets here, or to sue to recover a debt due here.   He must first take out ancillary administration.”  Equitable Trust Co. v. Plume, 92 Conn. 649, 654, 103 A. 940 (1918).   A failure to obtain the appropriate ancillary administration documents impacts a party's capacity to bring suit in this jurisdiction.   This court is aware that, under certain circumstances, a lack of capacity to bring suit implicates a party's standing and, accordingly, the subject matter jurisdiction of a court.   See Litvak v. Artusio, 137 Conn.App. 397, 49 A.3d 762 (2012) (court dismissed case for lack of subject matter jurisdiction because party lacked standing to sue in representative capacity where summons identified party in individual capacity and pleadings identifying her as executrix of estate not automatically bestow standing).

Bellis, Barbara N., J.