Opinion
No. 4003549
June 13, 2006
MEMORANDUM OF DECISION RE MOTION TO DISMISS # 106
FACTS
The plaintiffs, husband and wife, commenced this action to recover damages resulting from personal injuries that they sustained when they were rear-ended by the defendant, Thomas F. Brown, on June 18, 2003. At the time of the accident, the defendant presented a Connecticut driver's license with a resident address in Madison, Connecticut, and his car was registered to an address in Niantic, Connecticut. On June 15, 2005, the plaintiffs served the complaint on the Connecticut Commissioner of Motor Vehicles, since the defendant was not found at the address on file at the office of motor vehicles commissioner. The defendant passed away in Florida on September 26, 2004, approximately nine months before the suit was instituted.
On December 27, 2005, the defendant's attorney filed a motion to dismiss based on lack of subject matter jurisdiction since the defendant was deceased on the date of service. On January 17, 2006, the plaintiffs filed an objection to the motion to dismiss requesting that the motion be denied and the plaintiffs be permitted sixty days in which to investigate alleged fraud and misrepresentations by the defendant and his insurer, and thereafter take appropriate steps to perfect their claims, by seeking to either substitute the decedent's estate under General Statutes § 52-599 or file a new action under General Statutes § 52-592, the Accidental Failure of Suit Statute. The plaintiffs allege that the defendant committed possible fraud by misrepresenting that he was a resident of Madison, Connecticut at the time this action was commenced, in violation of General Statute § 14-45. The plaintiffs also allege fraud as to the insurer, the Hartford, because it failed to inform them of the defendant's death despite numerous dealings between said company and plaintiffs' counsel.
General Statute § 52-599(b) states, in relevant part: "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 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."
"If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits because of insufficient service or return of the writ due to unavoidable accident or the default or neglect of the officer to whom it was committed, or because the action has been dismissed for want of jurisdiction, or the action has been otherwise avoided or defeated by the death of a party or for any matter of form; or if, in any such action after a verdict for the plaintiff, the judgment has been set aside, or if a judgment of nonsuit has been rendered or a judgment for the plaintiff reversed, the plaintiff, or, if the plaintiff is dead and the action by law survives, his executor or administrator, may commence a new action, except as provided in subsection (b) of this section, for the same cause at any time within one year after the determination of the original action or after the reversal of the judgment." General Statutes § 52-592(a).
"A person holding a license for the operation of a motor vehicle issued by the commissioner shall notify the commissioner within forty-eight hours of any changes of his address. The notification shall include his old address and his new address." General Statute § 14-45.
DISCUSSION
"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 . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005); see also Blumenthal v. Barnes, 261 Conn. 434, 442, 804 A.2d 152 (2003); Dyous v. Psychiatric Security Review Board, 264 Conn. 766, 773, 826 A.2d 138 (2003). "When a court . . . decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light . . . [A] court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Filippi v. Sullivan, 1, 8, 866 A.2d 599 (2005); see also Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 432-33, 829 A.2d 801 (2003); Dyous v. Psychiatric Security Review Board, 264 Conn. 766, 775, 826 A.2d 138 (2003).
For the following three reasons, the court finds there is a clear lack of subject matter jurisdiction and, therefore, the motion to dismiss is granted.
I
Firstly, the plaintiffs have sued a legal nonentity, thus depriving the court of subject mailer jurisdiction. "The underlying problem is that service on a dead man deprives the court of jurisdiction to pronounce any decision on the merits." Marcejonis v. Torres, Superior Court, judicial district of Middlesex, Docket No. CV 99 0090735 (April 17, 2002, Shapiro, J.). "A judgment in an action begun and prosecuted against a defendant who is dead when it was begun, is null and void and may be attacked collaterally as well as directly." O'Leary v. Waterbury Title Co., 117 Conn. 39, 47, 166 A. 673 (1933).
"In Noble v. Corkin, [ 45 Conn.Sup. 330, 717 A.2d 301 (1998)] ( 21 Conn. L. Rptr. 547) the court explained that [b]y 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 . . . [T]he 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 . . . count of the complaint [directed towards the decedent] is thus an action against nobody . . . [A] dead person is a non-existent entity and cannot be party to a suit. Therefore, proceedings instituted against an individual who is deceased . . . are a nullity. Such proceedings are void ab initio and do not invoke the jurisdiction of the trial court . . . Thus, the Noble court determined that it lacked jurisdiction over the count of the complaint directed towards the decedent and accordingly, it granted a motion to dismiss that count." (Citation omitted; internal quotation marks omitted.) 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).
Applying the principles described above to the present case, and in spite of taking the facts alleged in the complaint and construing them in a manner most favorable to the pleader, the fact remains that the defendant was clearly deceased approximately nine months prior to the commencement of this action and the court finds it lacks jurisdiction.
II
Secondly, this action cannot be saved by service of process on the commissioner of motor vehicles or allegations of fraud or misrepresentation due to a violation of General Statutes § 14-45. Our Supreme Court has held that appointment of the commissioner of motor vehicles as attorney for service under General Statutes § 52-63 is revoked by the death of the resident motorist. Brogan v. Macklin, 126 Conn. 92, 94-95, 9 A.2d 499 (1939); see also, Castelhano v. Baldwin, Superior Court, judicial district of Hartford, Docket No. 469194 (November 24, 1995, Fineberg, J.) (holding that service on the commissioner of motor vehicles was ineffective because the appointment of the commissioner as attorney for service was revoked by the defendant's death).
"Furthermore, courts have rejected any attempts to link validity of service to the address notification requirements in General Statutes § 14-45." Mackey v. Moore, Superior Court, judicial district of Hartford, Docket No. FA 01 0631951 (April 14, 2002, Lifshitz, J.); see also Nevins v. Moretti, Superior Court, judicial district of New London at Norwich, Docket No. 094957 (July 2, 1991, Teller, J.) ( 4 Conn. L. Rptr. 244); State v. Baltromitis, 5 Conn. Cir.Ct. 72, 78, 242 A.2d 99 (1967), cert. denied, 156 Conn. 653, 241 A.2d 379 (1968); Piorkowski v. Federal Express Corp., Superior Court judicial district of New Haven, Docket No. 405352 (February 6, 1998, Levin, J.); Shircliff v. Mazzaro, Superior Court, judicial district of Waterbury, Docket No. 127199 (May 9, 1996, Pellegrino, J.) ( 16 Conn. L. Rptr. 630) ( 16 Conn. L. Rptr. 630); Jerjies v. Jerjies, Superior Court, Judicial District of Hartford, Docket No. FA 82 0271652 (December 29, 1999, Lifshitz, J.). In Nevins v. Moretti, supra, 4 Conn. L. Rptr. 244, the court reasoned that "[t]he purpose of Connecticut General Statutes Section 14-45 is to identify drivers and facilitate communicating with them . . . The purpose of that statute (Sec. 14-45) is not to provide an alternative method for service of civil process." The court finds that this well reasoned opinion should be adopted in this case for the same reasons as stated by Judge Teller. Unfortunately, the plaintiffs or their attorney "must learn at [their] peril" whether a defendant still resides at the address on file with the commissioner. Hartley v. Vitiello, 113 Conn. 74, 80, 154 A. 255 (1931).
III
Finally, substitution of the decedent's estate would be inappropriate where the decedent was not properly a party to the suit. "General Statutes § 52-599 does not operate to save such actions 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, supra, Superior Court, Docket No. CV 99 0174667; see also Noble v. Corkin, supra, 45 Conn.Sup. 333; Williams v. Marcher, supra, 21 Conn. L. Rptr. 303; Brown v. Novick, supra, 17 Conn. L. Rptr. 564. Section 52-599 is, therefore, inapplicable here.
CONCLUSION
Applying the principles described above to the present case, this court finds that it lacks jurisdiction over this matter. The motion to dismiss is granted. The plaintiffs have also indicated in their brief and at oral argument that the court should allow the substitution of the defendant's estate because otherwise the plaintiffs may proceed under the accidental failure of suit statute, General Statutes § 52-592. The court is not at liberty to allow this substitution or the sixty-day period requested by the plaintiffs to research the allegations of fraud and misrepresentation, however, because "any future action brought by the plaintiff[s] under § 52-592 is not before the court." Marcejonis v. Torres, supra, Superior Court, Docket No. CV 99 0090735.