Opinion
No. NNH CV11 6016848 S
October 11, 2011
MEMORANDUM OF DECISION
The plaintiffs, Dolly and Peter Romprey, commenced this action for legal malpractice by service of process on the defendant, Lisa Mainolfi, on December 28, 2010. The complaint alleges the following facts. On November 16, 2004, Dolly Romprey was injured when the vehicle she was driving collided with a vehicle driven by Donna Kempton. The collision was caused by Kempton's negligence, and Kempton "did not have sufficient automobile coverage on her vehicle." At the time of the accident, Dolly Romprey's vehicle was insured under a policy issued to both plaintiffs by Safeco Insurance Company of America (Safeco).
In November 2004, the plaintiffs hired the defendant to serve as their attorney in seeking monetary compensation, including underinsured motorist claims, as a result of the accident. In December 2005, the plaintiffs received $25,000 from Kempton's insurance company, an amount that the plaintiffs and defendant agree represents the maximum coverage Kempton held at the time of the accident. On February 26, 2008, after failing to reach an agreement with Safeco regarding payments to the plaintiffs pursuant to the underinsured motorist provisions of their policy, Mainolfi commenced a lawsuit against Safeco on behalf of the plaintiffs in Connecticut Superior Court, alleging that Safeco had breached its obligation to pay the plaintiff's underinsured motorist benefits, and seeking damages under their policy's terms. On September 4, 2008, Safeco filed a motion for summary judgment alleging that the plaintiffs had failed to commence the action within three years of the date of the collision, as required by the plaintiffs' policy. The Superior Court granted Safeco's motion for summary judgment on December 4, 2009, finding that the plaintiffs had in fact commenced the action more than three years after the accident date, outside the applicable statutory period set forth in their policy. The plaintiffs appealed to the Appellate Court, which affirmed the decision, and the plaintiffs' petition for certification has been granted by the Supreme Court.
The complaint alleges that the plaintiffs' claims for compensation against Safeco were time-barred because Mainolfi was negligent and that she breached the professional standard of care that she owed to the plaintiffs in that: a) she failed to commence the action against Safeco within the statutory deadline; b) she failed to maintain an orderly system of keeping track of cases she had initiated for clients in Superior Court with appropriate notations of statutory filing deadlines; c) she failed to take steps periodically to review the plaintiffs' file to determine whether any action had to be taken to prosecute, protect, and/or preserve the plaintiffs' rights against Safeco; d) she failed to communicate to the plaintiffs that she would not commence the action against Safeco within the statutory deadline so that they could retain other counsel; e) she failed to invoke any applicable tolls to the applicable statute of limitations; 1) she failed to take the steps necessary to secure the claim against Safeco in order to compensate the plaintiffs for their damages; and g) she engaged in other negligent, reckless, and careless conduct.
On April 15, 2011, the defendant filed an answer and asserted three special defenses: first, that the plaintiffs have failed to state a claim upon which relief can be granted; second, that the court lacks subject matter jurisdiction to hear the plaintiffs' claims in light of the pending appeal; and third, that the plaintiffs' claims are not ripe and/or are not justiciable in light of the pending appeal. On May 19, 2011, the plaintiffs filed a motion to strike the defendant's second and third special defenses and a memorandum of law in support of the motion, alleging that the pending appeal does not prevent the court from asserting subject matter jurisdiction over their legal malpractice action against the defendant or preclude the justiciability of the case. On July 1, 2011, the defendant filed an objection to the motion to strike. The matter was heard on the short calendar on August 22, 2011.
"Whenever any party wishes to contest . . . (5) the legal sufficiency of any answer . . . or any part of that answer including any special defense contained therein, that party may do so by filing a motion to strike the contested pleading or part thereof." Practice Book § 10-39(a). "A motion to dismiss, on the other hand, challenges the court's jurisdiction to hear a case." Fortier v. Casey, Superior Court, judicial district of New Britain, Docket No. CV 97 0484192 (September 30, 1999, Wollenberg, J.) [ 25 Conn. L. Rptr. 307]. "A claim that the court lacks subject matter jurisdiction is properly advanced by a motion to dismiss . . . It is axiomatic, however, that [o]nce the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented . . . and the court must fully resolve it before proceeding further with the case . . . Thus, on the issue of jurisdiction, the court may treat the motion to strike as a motion to dismiss." (Citations omitted; internal quotation marks omitted.) Hankard v. Avon, Superior Court, judicial district of Hartford, Docket No. CV 96 0565611 (June 22, 1999, Hale, J.).
In the present case, the procedural posture of the defendant's special defenses of lack of subject matter jurisdiction and lack of ripeness and/or nonjusticiability, and the plaintiffs' motion to strike them, is unusual for two reasons. First, pursuant to the rules of practice, a lack of subject matter jurisdiction is not properly raised by a motion to strike, but by a motion to dismiss. Second, because a claim of lack of subject matter jurisdiction is properly advanced in a motion to dismiss, such a claim is not amenable to a motion to strike on the ground of legal insufficiency. Nevertheless, because the question of subject matter jurisdiction addresses the competency of the court's power to adjudicate the case, it can be raised by any of the parties, or by the court sua sponte, at any time. Therefore, because the issue of subject matter jurisdiction has been raised and briefed by both parties, the court will resolve the issue as if the plaintiffs' motion to strike the special defenses of lack of subject matter jurisdiction and nonjusticiability is a motion to dismiss for lack of subject matter jurisdiction.
"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." (lnternal 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). "When a trial 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 . . . In this regard, 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.) Conboy v. State, 292 Conn. 642, 651, 974 A.2d 669 (2009).
The defendant argues that the court lacks subject matter jurisdiction because the plaintiffs' underinsured motorist claim, which is the basis for the present legal malpractice action, is presently on appeal. Under the defendant's reasoning, the plaintiffs' malpractice action is not ripe for review because if the plaintiffs prevail on appeal, then they will have a viable underinsured motorist claim against their insurer and no basis to pursue a legal malpractice action against the defendant. The plaintiffs argue that based on the Connecticut Supreme Court's ruling in Mayer v. Biafore, Florek O'Neill, 245 Conn. 88, 713 A.2d 1267 (1998), the pending appeal does not affect the subject matter jurisdiction of this action because the requisite elements of a malpractice claim have been established. The plaintiffs further contend that their malpractice action is justiciable because the requirements for justiciability have been met.
"A case that is nonjusticiable must be dismissed for lack of subject matter jurisdiction." (Internal quotation marks omitted.) Chapman Lumber, Inc. v. Tager, 288 Conn. 69, 86, 952 A.2d 1 (2008). "Justiciability requires (1) that there be an actual controversy between or among the parties to the dispute . . . (2) that the interests of the parties be adverse . . . (3) that the matter in controversy be capable of being adjudicated by judicial power . . . and (4) that the determination of the controversy will result in practical relief to the complainant." (Internal quotation marks omitted.) Mayer v. Biafore, Florek 0'Neill, supra, 245 Conn. 91. "In general, the plaintiff in an attorney malpractice action must establish: (1) the existence of an attorney-client relationship; (2) the attorney's wrongful act or omission; (3) causation; and (4) damages." Id., 92. A claim's justiciability is wholly separate from its merits . . . As such, an inability to establish the exact amount of damages is indicative of a defect in a plaintiff's capacity to prove his or her case, not of a deficiency in the court's subject matter jurisdiction." (Citations omitted.) Weiner v. Clinton, 100 Conn.App. 753, 760, 919 A.2d 1038, cert. denied, 282 Conn. 928, 926 A.2d 669 (2007).
"[J]usticiability comprises several related doctrines, namely, standing, ripeness, mootness and the political question doctrine, that implicate a court's subject matter jurisdiction and its competency to adjudicate a particular matter." (Internal quotation marks omitted.) Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 254, 990 A.2d 206 (2010). A trial court properly grants a motion to dismiss if it determines that the cause of action is "unripe for adjudication." Bloom v. Miklovich, 111 Conn.App. 323, 336, 958 A.2d 1283 (2008). "[T]he rationale behind the ripeness requirement is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements . . . Accordingly, in determining whether a case is ripe, a trial court must be satisfied that the case before [it] does not present a hypothetical inquiry or a claim contingent upon some event that has not and indeed may never transpire." (Citations omitted; internal quotation marks omitted.) Chapman Lumber, Inc. v. Tager, supra, 288 Conn. 86-87.
The Appellate Court has held that a legal malpractice claim is ripe in circumstances where the underlying lawsuit is on appeal. In Weiner v. Clinton, supra, 100 Conn.App. 753, the court held that the plaintiffs' pending appeal of a default judgment allegedly due to their lawyers' failure to respond to discovery requests did not preclude the justiciability of the plaintiffs' malpractice suit. The Appellate Court reasoned: "[T]he injury — the entry of the default judgment — already had occurred, as had the loss of the . . . legal fees paid to the defendants. The expenses associated with appealing from the default judgment were still accumulating, but they were by no means `hypothetical.' Similarly, the viability of the plaintiffs' legal malpractice claim was not contingent upon some event that ha[d] not . . . transpire[d] . . . The court had already rendered judgment of default against the plaintiffs, allegedly as a result of the defendants' negligent failure to respond to discovery requests. Overall then, the complaint's allegations, if proven, would have been sufficient to establish a cause of action against the defendants for legal malpractice." (Citations omitted; internal quotation marks omitted.) Id., 760.
The Weiner court based its reasoning on the Supreme Court's decision in Mayer v. Biafore, Florek O'Neill, supra, 245 Conn. 89, which held that a plaintiff's malpractice suit could proceed even when the alleged malpractice was never litigated in an underlying suit. In Mayer, the alleged malpractice was the failure to bring an underinsured motorist claim within the statute of limitations. Even though the attorneys never raised that claim in an underlying suit against the plaintiff's insurer, the court held that the malpractice claim ripened when it was "legally subject to dismissal." Id., 91. The Supreme Court observed: "All legal malpractice cases are based on underlying rights, for which the plaintiff originally sought legal representation. To require that the underlying dispute as to those rights, in all cases, must be completely resolved prior to bringing a malpractice action would unduly restrict the plaintiff's remedy against the allegedly negligent lawyer." Id., 92.
In the present case, the plaintiffs' malpractice claim is based on their attorney's failure to raise an underinsured motorist claim in the underlying suit within the statute of limitations, a conclusion that the trial court reached in granting Safeco's motion for summary judgment. The trial court's decision has been affirmed by the Appellate Court, and the plaintiffs' petition for certification has been granted by the Supreme Court. Notwithstanding this appeal, the plaintiffs' legal malpractice claim against the defendant is ripe for adjudication pursuant to the holding in Weiner. Even absent a final judicial determination in the underlying action, the plaintiffs' malpractice claim ripened when their underinsured motorist action became subject to dismissal.
The allegations set forth in the plaintiffs' complaint also satisfy all four elements of justiciability. The plaintiffs' claim is not based upon a hypothetical event that may occur in the future, but upon an injury that has already occurred. Specifically, the plaintiff's claim that they were injured by the defendant's alleged negligence in failing to commence a timely action, in failing to protect and preserve the plaintiffs' rights, and in failing to invoke any applicable tolls to the statute of limitations. These alleged failures resulted in damages to the plaintiffs, namely the inability to recover underinsured motorist benefits. The plaintiffs have also incurred legal fees paid to the defendant, and, although some of these attorneys fees may still be accumulating, they are by no means "hypothetical."
Furthermore, the plaintiffs' malpractice claim is not contingent upon some future event, as the Superior Court has already entered summary judgment against the plaintiffs, allegedly as a result of the defendant's legal malpractice. While the plaintiffs will eventually have to establish that the defendant was negligent, the complaint's allegations do not depend on the outcome of the appeal. Therefore, the plaintiffs have adequately alleged a cause of action for legal malpractice that is justiciable and ripe for adjudication.
In addition, to the extent that a lack of subject matter jurisdiction and nonjusticiability are improperly raised as special defenses, the plaintiffs' motion to strike the defendant's second and third special defenses is granted. See Silvermine Club v. Appleby, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 99 0174372 (October 9, 2001, Hickey, J.) (granting defendants' motion to strike plaintiff's special defense because plaintiff improperly raised the issue of nonjoinder of interested parties through a special defense, instead of filing a motion to strike the counterclaim pursuant to Practice Book § 10-39(a)(3)).
For the foregoing reasons, the court has subject matter jurisdiction over the plaintiffs' legal malpractice claim against the defendant. The plaintiffs' legal malpractice claim is justiciable and ripe for adjudication notwithstanding the pending appeal, and plaintiffs' motion to strike the defendant's second and third special defenses is granted.