Opinion
No. CV 02-0458609 S
October 14, 2003
MEMORANDUM OF DECISION RE MOTION TO DISMISS (#102.50)
This is a personal injury lawsuit arising from the death of Elvis Cordero. The original complaint dated November 16, 2001 alleges eight counts. Counts one through six pertain to claims by the Estate of Elvis Cordero and are not involved in the present motion. Counts seven and eight pertain to Lillian Cordero's claim for damages based on bystander emotional distress and intentional infliction of emotional distress. The defendant, American Medical Response, has moved to dismiss counts seven and eight asserting that the court lacks subject matter jurisdiction because the summons does not identify Lillian Cordero as a plaintiff. The plaintiff objects to the motion asserting that Lillian Cordero was named as a plaintiff in the original summons and further that any confusion in the original summons was cured by the amended summons filed on January 28, 2002. For the reasons set forth below, the motion to dismiss is denied.
BACKGROUND
The original writ, summons and complaint was made returnable to court on January 8, 2002. The summons was prepared on the form supplied by the court (JD-CV-1). Next to the box labeled "FIRST NAMED PLAINTIFF," the summons states, "CORDERO, ELVIS, PPA AND LILLIAN CORDERO, ADMINISTRATRIX." At the bottom of the form in the box designating the number of plaintiffs, is the number "2." The complaint attached to the summons is in eight counts. As noted above, in counts one through six, Lillian Cordero is bringing suit in a representative capacity as administratrix of her son's estate. As to counts seven and eight it is clear from the complaint that Lillian Cordero is suing individually. Within thirty days of the return date, an amended summons was filed listing Lillian Cordero, Administratrix of Elvis Cordero as the first named plaintiff and Lillian Cordero as additional plaintiff. This amended summons was certified to counsel but not otherwise served.
DISCUSSION
The defendant asserts that the Estate of Elvis Cordero is the only plaintiff named in the summons and it does not have standing to make a claim for personal injuries suffered by Lillian Cordero. Accordingly, the defendant argues that the court lacks subject matter jurisdiction over counts seven and eight and they must be dismissed.
The plaintiffs assert that the original summons did identify Lillian Cordero as a separate plaintiff and whatever ambiguity existed in the original summons was cured by the amended summons.
The original summons, when considered in its entirety, is ambiguous. On the one hand, only the box styled "First Named Plaintiff" is filled out. In that box, however, is listed Elvis Cordero, PPA, "and" Lillian Cordero, Administratrix. Moreover, at the bottom of the form it states that two plaintiffs are bringing the lawsuit. It is unclear from the summons itself who the two plaintiffs are. Reference to the complaint is needed to resolve the confusion.
Assuming, without deciding, that this ambiguity in the summons is a defect, it may be cured by amendment. See General Statutes § 52-128 (plaintiff may amend any defect without costs within thirty days after the return date). If the defect is deemed to be circumstantial, General Statutes § 52-123 applies. That statute states that "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." Section 52-123 is used to provide relief from defects in the text of the writ itself. Rogozinski v. American Food Service Equip. Corp., 211 Conn. 431, 434 (1989). Any amendment of such a circumstantial defect would relate back to the date of service of the original writ. Pack v. Burns, 212 Conn. 381, 386 (1989).
If the defect is deemed jurisdictional and not circumstantial, dismissal is required. In such a case, General Statutes § 52-72 permits amendment, but such amendment requires service in the same manner as other civil process.
The question is whether writ of summons in the present case is flawed by a circumstantial or jurisdictional defect. If it is circumstantial, the amended summons cures it; if it is jurisdictional, the amended summons (which was not served) does not cure it and dismissal is required.
Superior Court decisions have come to different views on this issue and the analogous situation where the defendant's name is left off the writ. Compare Coiro v. Duran, 4 Conn. L. Rptr. 17, 569 (September 9, 1991, Wagner, J.) (defendant named in complaint but not named in the writ of summons held to be jurisdictional defect beyond scope of § 52-123); Mason Contractors, Inc. v. Tower Shopping Plaza, 6 Conn. L. Rptr. 9, 260 (May 4, 1992, Curran, J.) (plaintiff failed to name defendant in writ of summons and failed to serve defendant held not a circumstantial defect and claim against defendant was dismissed); Bethea v. Gray, 7 Conn. L. Rptr. 157 (July 24, 1992, Maiocco, J.) (plaintiff named defendant in the complaint but not in writ, held to be circumstantial defect and no prejudice to defendant); Allen v. Freedman, 11 Conn. L. Rptr. 504, 1994 Ct. Sup. 4531 (DeMayo, J.) (one plaintiff not named in writ held to be a jurisdictional defect that could not be cured by hand delivery of amended summons to defendant's counsel); Coburn v. Quaratella, 34 Conn. L. Rptr 32, 2003 (Corradino, J.) (one plaintiff omitted from writ of summons but named in complaint held to be a circumstantial defect not going to jurisdiction).
In the present case, the court finds the defect in the writ of summons to be circumstantial. The summons form reflects that two plaintiffs are bringing suit. While Lillian Cordero's status on the summons could fairly (although not exclusively) be interpreted as representative only, the complaint makes clear she is suing individually as well. There is no prejudice to the defendant.
The motion to dismiss is denied.
So Ordered at New Haven, Connecticut this 14th day of October 2003.
Devlin, J.