Jessica Alexander v. Martin Newman (2013)

MEMORANDUM OF DECISION

This action arises out of an alleged motor vehicle collision on May 2, 2011, when a vehicle operated and owned by the defendant, Martin Newman collided with a vehicle operated and owned by the plaintiff, Jessica Alexander.   The plaintiff filed a one-count complaint against the defendant which alleges the following facts.   On May 2, 2011, plaintiff was operating her motor vehicle northbound in the center lane on Route 95, just north of Exit 41 in Orange, Connecticut.   At the same time and place the defendant was operating a motor vehicle, which was owned by him, northbound in the left lane on Route 95, just north of exit 41, in Orange, Connecticut, next to the plaintiff's vehicle.   The defendant attempted to move from the left lane to the center lane when he struck the left side of the plaintiff's vehicle.   The plaintiff alleges that the defendant was negligent when he struck her vehicle and as a result she suffered injuries.

The state marshal's return which is dated April 26, 2013, indicates that service was made on the Commissioner of Motor Vehicles on April 24, 2013, pursuant to General Statutes § 52–63 because after diligent search to locate the defendant at his last known address on record with the Commissioner of Motor Vehicles, State of Connecticut, the marshal was unable to locate the defendant.   The address of the defendant stated in the marshal's return is 11 Tall Trees Road, New Rochelle, New York. The marshal's return also states that on April 23, 2013 he “made a due and legal service upon the within named defendants(s) Wiley Whittaker and Stacey Edgett, by depositing at the Post Office via certified mail, postage prepaid, return receipt requested, a true and attested copy of the within original, writ, summons, complaint, prayer for relief and statement of amount in demand, addressed to:  April 26, 2013, Martin Newman, 11 Tall Trees Road, New Rochelle, N.Y. 10804 (Certified Mail # 7011 0470 0000 3329 3585).   The marshal's return refers to Wiley Whittaker and Stacey Edgett as defendants.   It is not clear who these individuals are.¹  In addition, although the marshal's return states that he attempted service pursuant to § 52–63, it appears that service was attempted pursuant to § 52–62, since the defendant was a nonresident.

On June 7, 2013, counsel for the defendant filed an appearance, and on June 12, 2013, filed a motion to dismiss for lack of subject matter jurisdiction and a memorandum of law in support thereof.   Counsel for the defendant argues that attempted service was not made on the defendant until after the death of the defendant and thus, the court lacks subject matter jurisdiction.   The plaintiff filed an objection to the motion to dismiss and a memorandum of law in support of the objection.   The plaintiff contends that neither she, her counsel, nor the state marshal were aware that the defendant was deceased at the time of service, and in addition, since the “decedent was alive at the time the cause and right of action arose,” i.e. May 2, 2011, the action survives pursuant to General Statutes § 52–599(b).

The matter was initially scheduled as take papers on this court's short calendar on August 12, 2013.   However, since the court wanted to hear oral argument, the matter was rescheduled for September 3, 2013.   In addition, although the plaintiff appeared to have conceded in her memorandum in opposition that the defendant died before he was served process, defendant's counsel failed to submit evidence of the defendant's date of death.   The plaintiff neither submitted evidence nor referenced the defendant's date of death in her brief.   On August 30, 2013, counsel for the defendant filed a supplemental to the motion to dismiss which contained as an exhibit, a copy of the defendant's death certificate which states that the defendant died on March 24, 2013.   The court heard argument on the matter on September 3, 2013.

DISCUSSION

“A motion to discuss ․ 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).  “A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.”   (Internal quotation marks omitted.)  Wilcox v. Webster Ins., Inc., 294 Conn. 206, 213, 982 A.2d 1053 (2009).  “The grounds which may be asserted in [a motion to dismiss] are:  (1) lack of jurisdiction over the subject matter ․” Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985).

“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 ․ The objection of want of jurisdiction may be made at any time ․ [a]nd the court or tribunal may act on its own motion, and should do so when the lack of jurisdiction is called to its attention ․ The requirement of subject matter jurisdiction cannot be waived by any party and can be raised at any stage in the proceedings.”  (Internal quotation marks omitted.)  Burton v. Commissioner of Environmental Protection, 291 Conn. 789, 802, 970 A.2d 640 (2009).

As previously noted, counsel for the defendant argues that the court lacks subject matter jurisdiction over this action because the defendant died before the action was commenced.  “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 ․ 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 ․” (Internal citations and quotation marks omitted.)   Torello v. Weber, Superior Court, judicial district of New Haven, Docket No. CV 11 6019270 (June 28, 2011, Wilson, J.).

The plaintiff in this case has objected to the motion to dismiss claiming that because the defendant was alive at the time the cause of action arose, i.e., May 2, 2011, when the collision occurred, General Statutes § 52–599 applies and thus, the action survives.  Section 52–599, in relevant part, provides:  “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 ․”

The plaintiff seizes upon language in the case of Noble v. Corkin, 45 Conn.Sup. 330, 717 A.2d 301 (1998), to support his position that because the defendant was alive at the time the accident occurred, § 52–599 applies to save the action.   In Noble, the plaintiff sustained injuries when she slipped and fell on ice and snow that had accumulated on property that the dead defendant, Alvan Corkin owned prior to his death.   The defendant was long, gone, dead and buried prior to plaintiff's slip and fall and prior to the plaintiff's attempted service on the defendant.   Judge Blue in that decision concluded that the court did not have subject matter jurisdiction stating, inter alia, that, “[h]ere, the person named as the defendant was dead before the cause of action had arisen or the action itself had commenced.   On these facts, there was no ‘cause or right of action’ to be saved, and no ‘civil action or proceeding’ ever existed.”  Id., 333.   Citing this language in Noble, supra, the plaintiff in the present case argues that Noble is distinguishable from this case because the defendant in Noble was dead at the time of the plaintiff's slip and fall and unlike the defendant in Nobel, supra, the defendant in this case was alive at the time of the motor vehicle accident.   The plaintiff seems to think that Judge Blue's conclusion that the court lacked subject matter jurisdiction turned on the fact that the defendant was dead at the time the cause of action had arisen, i.e., when plaintiff slipped and fell.   The plaintiff clearly misreads the holding in Noble as it is clear that the basis of Judge Blue's conclusion that the court lacked subject matter jurisdiction was because plaintiff attempted service on a dead person, which, as this court previously noted, “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.”   Torello v. Weber, supra.   The fact that the defendant was alive when the cause of action arose was immaterial as to whether there was an action to be saved.   The determinative question before Judge Blue, in Noble, supra, was whether the defendant, Corkin was alive at the time the action was initiated.   In fact, Judge Blue, likewise observed, “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.   Corkin, the person named in the writ as the defendant in this case, was dead at the time of service.   No such person existed at that time.   The first count of the complaint is thus an action against nobody.  [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.  Noble v. Corkin, supra, 45 Conn.Sup. 332–33.

Judge Blue also determined that “[o]ur survival of action statute, General Statutes § 52–599, ha[d] no application to the facts in [the Noble] case.   That statute provides, in relevant part, that [a] cause or right of action shall not be lost or destroyed by the death of any person and that [a] civil action or proceeding shall not abate by reason of the death of any party thereto ․ Statutes of this description apply when a party dies after commencement of the action.  (Emphasis added.)  Id., 333.

In granting the motion to dismiss, Judge Blue added a poetic flair to his ruling emphasizing the point that one cannot sue a dead person:

These are the simple facts of the case, and I guess I ought to know.   I've heard the facts and looked up the law, and I've got this opinion to show.

I'm not so wise as the lawyer guys, but this is what I've read:

If you sue a man who is cold in the ground, your case—like the man—will be dead.

Noble v. Corkin, supra, 45 Conn.Sup. 334.

In the present case, the marshal's return states that service was attempted on the defendant on April 24, 2013 by serving the Commissioner of Motor Vehicles.²  It is undisputed that Newman died on March 24, 2013.   Service of process was not attempted to be made upon him until on or about April 24, 2013 clearly after Newman had died.   The plaintiff's action commenced against Newman is void ab initio, and therefore the court lacks subject matter jurisdiction.

CONCLUSION

For the foregoing reasons, because the court lacks subject matter jurisdiction, the defendant's motion to dismiss is granted.

Wilson, J.

FOOTNOTES

FN1. At oral argument neither the plaintiff nor counsel for the defendant knew who these individuals were.   The identity of these individuals and their relationship to the dead defendant is not, however, dispositive of the issue raised in the motion to dismiss..  FN1. At oral argument neither the plaintiff nor counsel for the defendant knew who these individuals were.   The identity of these individuals and their relationship to the dead defendant is not, however, dispositive of the issue raised in the motion to dismiss.

FN2. The marshal's return states that on April 24, 2013 he made service on the Department of Motor Vehicles and afterwards on April 23, 2013 via certified mail to defendants Wiley Whitakker and Stacey Edgett addressed to “April 26, 2013, Martin Newman at 11 Tall Trees Road, New Rochelle, NY.” The chronology of dates in the marshal's return is confusing.   Thus, since the defendant was a nonresident at the time of the alleged motor vehicle accident, the court will conclude that on or about April 24, 2013 attempted service was made on the defendant pursuant to General Statutes § 52–62..  FN2. The marshal's return states that on April 24, 2013 he made service on the Department of Motor Vehicles and afterwards on April 23, 2013 via certified mail to defendants Wiley Whitakker and Stacey Edgett addressed to “April 26, 2013, Martin Newman at 11 Tall Trees Road, New Rochelle, NY.” The chronology of dates in the marshal's return is confusing.   Thus, since the defendant was a nonresident at the time of the alleged motor vehicle accident, the court will conclude that on or about April 24, 2013 attempted service was made on the defendant pursuant to General Statutes § 52–62.

Wilson, Robin L., J.